Wong (Migration)

[2023] AATA 1459

Wong (Migration) [2023] AATA 1459 (6 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Tsz Yuk Wong

REPRESENTATIVE:  Mr Louis Kristopher

CASE NUMBER:  2202204

HOME AFFAIRS REFERENCE(S):          BCC2017/1539104

MEMBER:Christine Kannis

DATE:6 January 2023

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)(a) of Schedule 2 to the Regulations

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

·reg 2.03A

Statement made on 06 January 2023 at 7:36am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit and Family Court remittal – genuine de facto relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cls 820.211, 820.221

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 (the Act).

2. The applicant applied for the visa on 28 April 2017 on the basis of her relationship with her sponsor, Mr Hiu Hung Lam. 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 a de facto relationship under the Act and therefore she did not satisfy cl 820.211(2)(a).

4. The applicant sought review of the decision and on 29 October 2020, the Tribunal (differently constituted) conducted a hearing after which it affirmed the Department’s decision.

5. The applicant sought review of the decision of the first Tribunal and on 19 January 2022, the Federal Circuit and Family Court of Australia quashed the decision and remitted the matter to the Tribunal to reconsider and determine the matter according to law. 

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

7. The applicant appeared before the Tribunal on 12 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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. The applicant and the sponsor were married after the application was lodged.  Therefore, the issues before the Tribunal are whether at the time of application the applicant was the de facto partner of the sponsor, and whether at the time of this decision she is the spouse of the sponsor.

   Whether the parties are in a spouse or de facto relationship

10. 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.

11. 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 r.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.

12. 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 13 October 2018. 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).

    Background

13. The applicant claims to have first met the sponsor on 1 August 2015 and that their de facto relationship began on 10 January 2016.

14. The applicant and the sponsor were married on 13 October 2018.

15. The Federal Circuit and Family Court of Australia determined that the first Tribunal’s decision be remitted to the Tribunal on the ground that:

    The Tribunal failed to make findings in relation to the two Form 888 statutory declaration documents containing the opinion of friends and acquaintances about the nature of the relationship. It cannot be said, in that context, that the Tribunal has properly assessed all of the matters it is required to assess in determining the nature of the relationship between the applicant and her sponsor. The Court also finds that, had the Tribunal assessed that evidence and made findings, it could realistically have resulted in a different outcome. The failure to do so is thus material and the Tribunal has, accordingly, fallen into jurisdictional error by failing in relation to its statutory task.

16. The Tribunal considered the evidence against the reg 1.09A(3) and reg 15A(3) factors.

    Financial aspects of the relationship

17. The Tribunal has taken into account the evidence provided as to the financial aspects of the relationship 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.

18. In the Application for migration to Australia by a partner, the applicant provided the following information in relation to the financial aspects of the relationship:

    I'm currently a student and have been in Australia for five years. I'm currently studying for English. My partner is a local medical graduate from the University of Western Australia. He is currently working full time for after-hours medical service Dial a Doctor. My partner is the main income earner for us as he is working full-time. | also receive support from my family and cover for my tuition fee. We do share household bills and expenses such as food, groceries, expenses on pets. | can't say we pay everything equally since I'm currently a student while my partner is working full time. But we have always supported each other financially from the start of our relationship whenever needed. We also have a joint account since 7th October 2016 in Westpac, which is the day before my partner's birthday to mark our commitment of our relationship. My partner bought a land in Kardinya in late 2015 with the support from his parents and is currently building a house there. We make regular saving into our joint account and we plan to use the money for our future home such as buying furniture. We have also been using the joint account to pay for daily expenses. I myself with the support of my family has bought a building apartment on Palmerston Street Perth WA 6000 and again is currently under construction. We are planning to get a loan closer to the finish time of the apartment.

19. In the Sponsorship for a partner to migrate to Australia, the sponsor said he is a medical officer and the applicant is a student. He said the applicant received financial support from her family. He said he and the applicant shared bills, groceries and rent but had no specific agreement. He said he usually paid more because he was working. The sponsor said he and the applicant had a Westpac joint account and they planned to use their savings to buy a home. He said he had purchased land in Kardinya and the applicant had purchased an apartment with the help of her family which was due to finish in May 2017.

20. The applicant provided Westpac statements for the period from September 2016 to March 2020  for an account in the parties’ joint names which shows debit transactions identified as payments for food, groceries and utilities. The applicant told the Tribunal that the joint account is now closed.

21. Commonwealth bank statements for two accounts in the parties’ joint names for period from 6 May 2020 to 30 June 2022 were provided. The credit transactions include transfers from the applicant’s previous employer, Kelly Marie Wray, and transfers from another Commonwealth bank account, identified by the parties as an account in the sponsor’s name. The debit transactions include payments for food, Netflix and HBF. The sponsor told the Tribunal that the mortgage repayments are paid from the account.

22. Evidence of the applicant having a credit card linked to the sponsor’s credit card in the period from 6 October 2021 to 6 November 2022 was provided.

23. The applicant told the Tribunal that she is currently working part-time in the beauty therapy industry and the sponsor is working as a doctor. The sponsor told the Tribunal he is working on a part-time basis, 3 to 4 days per week, in Harvey. The applicant told the Tribunal that the sponsor is the bigger income earner and he pays the mortgage. She said she pays for groceries from her salary.

24. A Contract for sale of land or strata title offer and acceptance signed by the applicant on 28 November 2014 showing the applicant as the buyer of a property at Palmerston Street Perth WA 6000 (Palmerston Street) was provided.  A Substituted Transferee Application Form dated 31 March 2017 in respect of Palmerston Street showing the applicant as the buyer and the sponsor as the transferee was provided. The form identifies the applicant as the de facto partner of the sponsor.

25. In an undated Personal Statement the sponsor said:

    I would also like to clarify the transfer of the apartment under my name was a genuine act of me taking care of my wife and there is no deceived intention in our relationship, should speculations have been raised by any authorities. Working as a doctor I’m fortune enough to be granted a career that will allow me to provide more than enough for our living, indicated in my yearly taxation. …..

    The transfer of the apartment under my name is purely an act by a husband making a promise to look after his wife.

26. An Application for First Homeowner Grant dated 18 May 2017 in the sponsor’s name was provided. The application was in relation to the sponsor’s purchase of a property at Cameron Way Kardinya WA 6163 (Cameron Way).

27. The applicant confirmed at hearing that Palmerston Street and Cameron Way are in the sponsor’s name only. She said her immigration status precludes her from owning real property.

28. The applicant told the Tribunal that she and the sponsor are joint mortgagors of Palmerston Street and Cameron Way and the Commonwealth bank statements indicate that they have an offset account in their joint names.

29. The Tribunal finds that at the time of application and at the time of decision,  the applicant and the sponsor have no major joint assets. The Tribunal finds that at the time of decision the applicant and the sponsor have major joint liabilities, namely the mortgages over Palmerston Street and Cameron Way.

30. The Tribunal finds that at the time of application and at the time of decision, the parties pool  financial resources and share of day-to-day household expenses.

31. The Tribunal is satisfied that the evidence in relation to the financial aspects of the relationship is an indicator of a genuine and continuing de facto relationship at the time of application and of a genuine and continuing spousal relationship at the time of decision. 

    Nature of the household

32. The Tribunal has taken into account the evidence as 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.

33. The parties do not have any children. 

34. In the Sponsorship for a partner to migrate to Australia, the sponsor said he and the applicant had been living together since January 2016. He said the applicant did the cooking, cleaning and laundry however he sometimes helped in these tasks. He said they did the grocery shopping together and were equally responsible for the care of their cats.  In the Application for migration to Australia by a partner, the applicant provided similar information in relation to the nature of the household.

35. A document described as Flat/house-sharing agreement was provided. The document shows the parties resided at Medhan Street Maylands WA 6051 (Medhan Street) commencing on 24 April 2017. Correspondence addressed to the applicant and to the sponsor individually at Medhan Street in 2017 was provided.

36. The applicant told the Tribunal that she and the sponsor lived at Medhan Street from April 2017 to August 2017, after which they moved to Palmerston Street. She said they remained there for 1.5 years while they were waiting for completion of a house at Cameron Way. The sponsor gave consistent evidence in this regard.

37. The applicant said she and the sponsor remained living at Cameron Way until a few months ago when the sponsor obtained work in Harvey. She said they spend part of the week living at Carnelian Avenue, Australind WA 6233 (Carnelian Avenue) and part of the week at Cameron Way. The sponsor gave consistent evidence in this regard.

38. Correspondence addressed individually to the parties at Palmerston Street in 2018 and 2019 was provided. Correspondence addressed to the parties jointly at Palmerston Street in 2019 was provided. The parties’ Marriage Certificate indicates that their place of residence was Palmerston Street.

39. Correspondence addressed to the parties jointly at Cameron Way dated in 2021 was provided. Correspondence addressed to the sponsor individually at Cameron Way in 2022 was provided.

40. A Residential Tenancy Agreement showing the parties as the tenants of a property at Carnelian Avenue was provided. The term of the tenancy was indicated to be from  2 June 2022 to 1 August 2023.

41. Regarding sharing of housework, the applicant told the Tribunal she does the cooking and the majority of the housework because the sponsor works long hours. The sponsor gave consistent evidence in this regard.

42. The Tribunal finds that the evidence in relation to the nature of the household is an indicator of a genuine and continuing de facto relationship at the time of application and of a spousal relationship at the time of decision.

    Social aspects of the relationship

43. 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 in a de facto relationship or a spousal relationship with 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. 

44. In the Sponsorship for a partner to migrate to Australia, the sponsor said he and the applicant enjoyed going to the cinema together. He said they joined a gym in December 2016 and had been regularly attending together. The sponsor said he and the applicant go out with friends for dinner or invite them to their home for dinner. The sponsor said he and the applicant had travelled to Hong Kong and Japan together. In the Application for migration to Australia by a partner the applicant provided similar information in relation to the social aspects of the relationship.

45. In an Application for First Homeowner Grant dated 18 May 2017 in the sponsor’s name, he indicated that the applicant was his spouse/de facto partner and she signed the document as his spouse/de facto partner.

46. The first Tribunal noted that the sponsor’s parents, who live in the United States, were unaware the applicant resides in the same house as their son. The sponsor told the first Tribunal that his parents were unaware that the parties were married and said this was because they did not approve of the relationship. The applicant and the sponsor told the Tribunal that the sponsor’s parents still do not know that the parties have married. They said they have not told them because the sponsor’s parents do not approve of the applicant and in particular her lack of higher education.

47. A statutory declaration dated 25 May 2017, made by Dr Xin Loong Chaw was provided. Dr Chaw said he had known the applicant for 1 year and the sponsor for 3 years. He did not indicate how frequently he spent time with the parties as a couple,  His reasons for his belief that the parties’ relationship is genuine and continuing included they are cohabitating, that there is photographic evidence on social media, that their interaction as a couple appeared genuine and that he witnessed electronic communication between the parties which appeared genuine. Given the general nature of his reasons for his belief, the Tribunal accords this evidence limited weight.

48. A statutory declaration dated 29 October 2017, made by Jing Yao Zhao was provided. Mr Zhao said he had known the applicant for 5 years and the sponsor for 2 years. He said he meets with the parties at least once a month. His reasons for his belief that the parties’ relationship is genuine and continuing included that they have been living together, they have known each other for more than 2 years and have travelled together on several occasions. Given the general nature of his reasons for his belief, the Tribunal accords this evidence limited weight.

49. The applicant told the Tribunal that her mother and her 2 brothers have visited Perth and have met the sponsor. She said the sponsor’s parents do not approve of her and are not aware of the marriage.

50. The Tribunal noted that no third-party witnesses were offered to provide current evidence in relation to the social aspects of the relationship. The Tribunal allowed the applicant additional time to provide this evidence. Following the hearing, the applicant provided three statutory declarations made in December 2022 by the applicant’s brother, the applicant’s friend and the sponsor’s friend. Each of the declarants stated that they had spent time with the parties as a couple and each provided reasons for their belief that the relationship is genuine and continuing. The Tribunal accords this evidence some weight.

51. Evidence of joint travel, including to Margaret River in 2018, to Hong Kong in 2018 and to Sydney in 2017 was provided. 

52. The applicant’s Individual Tax Returns for the 2019 and 2021 financial years show that she declared the sponsor as her spouse for the relevant financial year. The sponsor’s Individual Tax Returns for the 2017, 2019 and 2021 financial years show that he declared the applicant as his spouse for the relevant financial year. The Tribunal accords this evidence some weight.

1. In a BUPA letter dated 23 April 2019, the applicant is described as the ‘contributor’ and the sponsor is described as ‘partner’.

2. An email dated in 2018 from iiNet to the sponsor advised that his partner (the applicant) had been registered on his account.

3. Photographs of the parties’ wedding in 2018 were provided which showed the parties and three other people.

4. A photograph of the parties with a person described as the applicant’s mother was provided. The photograph is indicated to have been taken at Palmerston Street in March 2018. Photographs of the parties in social settings with other people were provided. The photographs are indicated to have been taken at restaurants in 2018, 2019 and 2022 and at a cinema in 2020. The Tribunal accords this evidence some weight.

5. Based on the oral and written evidence, the Tribunal is satisfied that the parties represented themselves to other people as being in a de facto relationship with each other at the time of application and as being in a spousal relationship at the time of decision.

   The nature of the persons’ commitment to each other

6. The Tribunal has considered the evidence provided in relation to the nature of the persons’ commitment to one another 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.

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

   Since Jan 2015, we have always lived together and support each other financially, physically and emotionally. In August 2016, my partner injured his lower back at work in the Obstetrics and Gynaecology outpatient clinic and stayed overnight in the emergency department of Fiona Stanley Hospital. | was with him the whole time in the ED of FSH.
   …
   I have looked after him where he a took a week off work after the injury. My partner has also taken time off work and accompany me to attend any of my
   medical appointments and has always given me and my family his medical advice.  
   ….

   We have always enjoyed each other's company since we have been together.

8. In the Sponsorship for a partner to migrate to Australia, the sponsor said he and the applicant intend their relationship will be a long term relationship.

9. The parties married on 13 October 2018.

10. A HBF letter dated 23 January 2020 evidencing the applicant and the sponsor’s joint health insurance as a couple was provided.

11. A HBF letter dated 18 October 2021 evidencing the applicant and the sponsor’s joint health insurance as a couple was provided.

12. A HBF letter dated 23 November 2022 evidencing the applicant and the sponsor’s joint health insurance as a couple was provided.

13. In relation to the emotional support provided by the sponsor, the applicant told the Tribunal that he supports her when she is finding work difficult. She said when he is tired from working, she cooks for him, massages him and talks to him to try and cheer him up. The sponsor gave consistent evidence in this regard.

14. Regarding their future plans, the parties gave consistent evidence that after the sponsor has taken his General Practice exams in February 2023, they will start a family and visit the applicant’s father in Hong Kong.

15. In its Reasons for Decision, the first Tribunal said:

    The Tribunal originally received sworn oral evidence from the visa applicant that at the time the parties met, she was not working in the sex industry, but had considered doing so and informed her sponsor that she was considering such work.  She claimed in evidence that her partner, in order to dissuade her to work in that area, promised to take care of her. In a submission from their registered migration agent dated 3 August 2020, it is claimed the visa applicant was in fact working in that employment up until September 2019, and in fact the sponsor remained unaware of what his now wife was doing for employment until the Tribunal hearing of 12 March 2020.

    …..

    Of concern to the Tribunal, however, is the evidence with regard to the return travel to Hong Kong of the sponsor in December 2018 in order to attend a friend’s wedding. The Tribunal heard evidence that at this time the sponsor engaged in a sexual relationship with another friend in Hong Kong, and that this person then came to Australia in early 2019 in order to visit the sponsor. The Tribunal further heard that, once the visa applicant had become aware of the affair, she returned to work in the sex industry as a form of revenge against her husband.

16. In an undated written Personal Statement made by the sponsor, he said:

    It has never been a dull moment for me not to continuing supporting my wife, Tsz Yuk Wong when she came out in the middle of the tribunal and opened up that she once again returned to the work in the sex industry between 2018 and 2019. I can not only be angry and blame myself for not knowing her return to that industry, but to contemplate under what circumstances has a beloved wife has taken this action.

    Right before our relationship starts back in 2018, Tsz Yuk Wong has implied that she had worked in the sex industry. Despite that, we entered a relationship, promising her I will be looking after her and her not continuing the work in that industry.

    ……

    It is all as a result of her previous purchase of an off the plan apartment back in 2014 before we met as well as the first introduction to her to my parents back in June 2017, which has ended badly with us cancelling our altogether trip to Sydney, while my parents labelling her as a low-income earner with no academic background. The disapproval of my parents has made my wife to consider her as a burden to me and has triggered her initial thought of return to the work in the sex industry.

    Closing in to the competition of construction of the apartment in August 2017, she was not unable to borrow a loan due to a lack of a stable income. At the same time, her initial 10% of deposits, in which a large amount was given by her family, would be forfeited given the purchase was not subjective to finance approval. The apartment was then transferred and a loan was borrowed under my name, purely an act out of me promising looking after her. At this time, the idea of her as a burden to me further develops.

    To make matter worse, after the refusal letter from the immigration department indicating that her name was not on the apartment, ignoring the reasons that we have given in the initial application, we have made attempts to adding her name back onto the apartment. From there, a re-valuation of the apartment by the bank indicated the current value of the apartment was $450,000, which is $160,000 short compared to the purchase price of $610,000.

    Under these circumstances and the false belief that she was a burden to me, she returned working in the sex industry out of guilt between 2018 and 2019.

    …

    I plead the tribunal to take consideration into circumstances in which TSZ YUK WONG returned to that particular industry, the fact that she has not worked in that industry since 2020, her efforts in changing and moving on to a new business, me as a husband making mistakes and failing to seeking the parental approval, as a doctor with particular interests in women’s health, the continuation and the genuineness of our relationship since 2015, and most importantly the stigmatization of my wife’s previous work as a mark of disgrace.

17. The applicant told the Tribunal that she and the sponsor have forgiven each other for their stupid decisions. She said she has forgiven the sponsor for his sexual encounter with an old friend in Hong Kong in 2018 and he has forgiven her for her return to the work as a sex worker when she felt stressed about the financial issues and the sponsor’s parents’ disapproval. The sponsor gave consistent evidence in this regard.

18. On the basis of the evidence before it, the Tribunal finds that at the time of application the parties were living together and that they saw their relationship as long term and that they provided companionship and emotional support to each other.

19. Regarding whether the requirements of s 5CB(2) were met at the time of application, the Tribunal finds:

    ·the parties were not married;

    ·the parties lived together or did not live apart on a permanent basis;

    ·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 de facto relationship must have existed for at least the period of 12 months ending immediately before the date of the application, unless the applicant 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 where the sponsor is or was a humanitarian visa holder, or for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law: reg 2.03(4), (5). These exceptions do not 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). In her Application for migration to Australia by a partner, the applicant indicated she and the sponsor committed to a shared life together to the exclusion of all others on 10 January 2016. The application was made on 28 April 2017. On this basis the Tribunal finds that the applicant meets the additional criteria prescribed in reg 2.03A.

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

    • 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.

    Non-disclosure certificates

24. The Departmental file number BCC2017/1539104 contains information referring to investigations undertaken by the Department. Some of the information is the subject of non-disclosure certificates .

25. Section 375A provides that certain information is only disclosable to the Tribunal if the Minister has certified that the disclosure would be contrary to the public interest or for any other reason specified in the certificate. If there is such a certificate, the Tribunal must do all things necessary to ensure that the information and/or documents subject to the certificate are not disclosed to any other person but the Member to whom the matter is constituted for the purpose of conducting the review.

26. Section 376 of the Act provides that the Tribunal has discretion to disclose information or documents subject to a s 376 certificate if the Tribunal considers it appropriate having regard to any advice by the Secretary about the significance of the documents or information.

27. Prior to the hearing the Tribunal provided the applicant with copies of the s 375A and s 376 certificates and invited her to make submissions on the validity of the certificates. The representative advised that the applicant did not dispute the validity of the certificates.

28. The Tribunal explained it had taken the view that certificates are valid. The Tribunal explained that the information contained in the certificates was adverse information and therefore to provide her with procedural fairness it would put the gist of the  information to her under s 359AA of the Act.

29. The Tribunal put to the applicant that the information contained in the certificates was in relation to allegations that she was working in the sex industry in 2018. As noted, the applicant did not dispute that she previously worked as a sex worker and said she no longer works in the sex industry. The Tribunal is satisfied that the explanation given by the applicant was acceptable.  Accordingly, the Tribunal places no weight on the information making its decision.

    Conclusion

30. 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) and 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

31. 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)(a) of Schedule 2 to the Regulations

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

    ·reg 2.03A

    Christine Kannis
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being in a de facto relationship with each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).