Yeung (Migration)

Yeung (Migration) [2020] AATA 4137 (19 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Yuk Ha Yeung
Ms Sze Hang Suen
Mr Chi Hang Suen
CASE NUMBER:  1909614
DIBP REFERENCE(S):  BCC2016/2809853 BCC2017/4287183
MEMBER:Susan Trotter
DATE AND TIME OF
ORAL DECISION AND REASONS:         19 August 2020 at 1:57 pm (QLD time)
DATE OF WRITTEN RECORD:                2 September 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211(2) of Schedule 2 to the Regulations
·cl.820.221(1) of Schedule 2 to the Regulations
·r.2.03A.

Statement made on 02 September 2020 at 11:59am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – de facto partner or spouse – incorrect information in visa application and department interviews – meeting through introduction agency not disclosed – adverse information that applicant’s motivation was to obtain visa – financial, household and social aspects of relationship – nature of commitment – relationship less than 12 months when application made – compelling and compassionate circumstances for grant of visa – registered civil partnership – validly married after application made – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 5F(2)(a), 359AA, 375A
Migration Regulations 1994 (Cth), rr 1.09A(3), 1.15A(3), 2.03A, Schedule 2, cls 820.211(2)(a), 820.221(1), (2)(a), 820.321
Civil Partnerships Act (Qld) 2011, s 9
CASES
Bretag v MILGEA [1991] FCA 582
Garcevic v MIAC [2012] FMCA 931

APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Immigration on 23 January 2017 to refuse to grant the visa applicants Partner (Temporary) (Class UK) Subclass 820 visas under the Migration Act 1958 (the Act).
At the hearing on 19 August 2020, the Tribunal made an oral decision. The following is the written reasons for that decision.
STATEMENT OF DECISION AND REASONS
The first‑named applicant (the applicant), a now 47-year-old citizen of Hong Kong. The second‑named and third-named applicants are the children of the applicant.
The applicants applied for the visa on 24 August 2016 on the basis of the applicant’s relationship with her sponsor, Mr Michael Oberhoff, an Australian citizen.
At the time of the visa application, 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 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.221(2)(a) of Schedule 2 to the Regulations as required, because the delegate was not satisfied that the applicant was the spouse or de facto partner, as defined, of the sponsor. As regards the second-named and third-named applicants, the delegate was not satisfied that they were each a dependant or a member of the family unit of a person who satisfied the primary criteria and was the holder of a Subclass 820 visa for cl.820.321 to be met as required.
The applicants lodged an application with the Tribunal on 26 January 2017.
On 8 June 2018, the Tribunal (differently constituted) affirmed the decision under review.
On 12 April 2019, the Federal Circuit Court remitted the matter to the Tribunal (by consent) on the basis that the Tribunal had failed to disclose the existence of a s.375A certificate dated 16 November 2017 to the applicants.
The applicants appeared before the Tribunal on 19 August 2020 by video conference to give evidence and present arguments. The Tribunal heard evidence from each of the applicants, and also from the sponsor.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal delivered an oral decision on 19 August 2020 remitting the matter for reconsideration.
ISSUES
There is a two-stage process for partner visas. The applicant must hold a provisional visa in order to be granted a permanent visa. The grant of the provisional visa enables an applicant to remain in Australia on a temporary basis. The grant of a permanent visa may subsequently be considered, and would generally depend on whether the relationship has continued for a period of at least two years.
The Partner (Temporary) (Class UK) visa class contains one visa subclass: Subclass 820 (Partner). The criteria for a Subclass 820 visa are set out in Part 820 of Schedule 2 to the Regulations and include cl.820.211 and cl.820.221.
The criteria for a Subclass 820 visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994. Clauses 820.211(2)(a) and 820.221(1) require that at the time the visa application was made, and at the time of decision, the applicant is the spouse or de facto partner of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen and that the sponsor was not prohibited from being a sponsoring partner under cl.820.211(2B). In the present case, the applicant claims to have been the de facto partner of the sponsor at the time of the visa application and to be the spouse of the sponsor at the time of decision.
‘De facto partner’ is defined in s.5CB of the Act and 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, they live together, or do not live separately and apart on a permanent basis, and they are not related by family: s.5CB(2).
‘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. Section 5F provides that 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) of the Regulations.
In forming an opinion as to the matters required in s.5CB(2) and/or s.5F(2)(a)-(d), regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the persons’ household and the nature of their commitment to each other, as set out in r.1.09A(3) (as regards a de facto relationship) and r.1.15A(3) (as regards a spouse relationship).
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. These are: that the couple are both at least 18 years of age; and with limited exceptions, that the visa applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the visa application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship existed for 12 months prior to the application does not apply in certain circumstances 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: r.2.03(4), (5).
The applicant claims that she and the sponsor were in a de facto relationship at the time of the visa application and that she was (is) the spouse of the sponsor at the time of decision.
It follows that the issues for the Tribunal to determine are:
(a) Were the de facto criteria met at the time of the visa application? That is,
(i)Were the requirements for a de facto relationship met? And, if so,
(ii)Are the additional criteria for a de facto relationship met? That is,
A.   Were each of the applicant and the sponsor at least 18 years of age? And, if so,
B.   Had the applicant and the sponsor been in a de facto relationship for at least 12 months prior to the date of the visa application? And, if not,
C.   Are there compelling and compassionate circumstances for the grant of the visa or were there other circumstances existing such that the requirement to have been in a de facto relationship for at least 12 months prior to the date of the visa application does not apply?
And, if so,
(b) Do the requirements of cl.820.211(2) continue to be met at the time of decision, in particular relevant to this application, are the spouse criteria met at the time of decision? That is,
(i)Are the applicant and sponsor validly married? And, if so,
(ii)Are the other requirements for a spousal relationship met?
And, if so,
(c)   Is the sponsor prohibited from being a sponsoring partner? And, if not,
(d) Is the applicant sponsored as required? And, if so,
(e) Did the applicant hold a substantive visa at the time of the visa application?
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a now 47-year-old citizen of Hong Kong. The sponsor is a now 61‑year‑old Australian citizen.
The visa application of 24 August 2016 states that the applicant and the sponsor first met at Southport on 15 August 2015 and committed to a de facto relationship on 14 September 2015.
Subsequent to the visa application, the parties were married on 14 October 2017 in Australia.
Various documents (including identification documents, the parties’ Marriage Certificate and related documents, statements and statutory declarations of the applicant and the sponsor, statutory declarations of friends regarding the relationship as at the date of the visa application, individual and joint bank statements, travel documents, various photographs, lease agreements and evidence of residence) were provided by the applicant to the Department in support of the visa application and have been taken into account by the Tribunal.
Further documents were provided to the Department following the visa application including as regards the relationship following the visa application, and in response to adverse information put to the applicants by the Department, including evidence of an introduction agency contract.
Further documents have also been provided to the Tribunal including as follows:
(a) Copy of current drivers’ licences of the applicant and sponsor, showing both residing at the same address (the Southport home);
(b) Divorce Order dated 19 July 2011 for the applicant in relation to previous marriage;
(c)   Divorce Order dated 17 September 2011 for the sponsor in relation to previous marriage;
(d) Documents, including bank statements, regarding the Yeung and Oberhoff Trust;
(e) Joint bank account statements of applicant and sponsor between October 2015 to date;
(f)    Various shopping receipts and photographs of presents for each other;
(g) Prouds The Jewellers receipt dated 11 May 2016 for a 9 carat, 2 stone ring and accompanying photograph;
(h) Photographs of:
(i)honeymoon in Vietnam, including applicant and sponsor together and in company with family and friends;
(ii)wedding day, including applicant and sponsor together and in company with family and friends/guests;
(iii)various occasions in September, October, November and December 2015 and January, February, March, April and May 2016 – including the applicant and the sponsor together and in company with family and friends at the Brisbane Airport, the Gold Coast, the Sunshine Coast, Sydney, at Christmas at a friend’s home, at a football match with the applicant’s son; Gold Coast, at a friend’s wedding, in Hong Kong, in China, celebrating the sponsor’s birthday, moving house together, in engagement photographs and with family and friends’ at dinners and get-togethers;
(iv)various occasions in February, March, May, June, July, September and October 2017 and January, April, May, June, September, November 2018 – including the applicant and the sponsor together and in company with family and friends on multiple occasions including on a Whitsunday sailing trip with three other couples, with friends at Coffs Harbour, on a second joint trip to Hong Kong, on a trip to Macau, Korea, renovating the applicant’s business premises together, at family dinners at home, on a trip to Coolangatta, in Vietnam, in China, at home, at a friend’s wedding and at a café in Mudgeeraba;
(v)various occasions in January, April, June, July, August, September, October, November, December 2019 and January 2020 – including the applicant and the sponsor together and in company with family and friends on multiple occasions including in China, at the sponsor’s 60^th birthday celebrations, at a local festival, at the Brisbane Airport, at a Broadbeach restaurant and bar, at a Southport dinner, at the Bundall markets, at Coolangatta, at home, at the applicant’s daughter’s graduation ceremony (including together in official graduation photos with family), at Christmas and New Year family dinners and at New Year and Chinese New Year celebrations;
(i)    Civil Partnership Certificate dated 10 June 2016;
(j)    Marriage Certificate dated 14 October 2017;
(k)   Various documents re applicant’s business, Mandy’s Bubble Tea;
(l)    RACQ car insurance policies in the name of the sponsor from September 2016 to date with the applicant named as the most frequent driver of the sponsor’s car, a Toyota RAV4;
(m) Registration certificate and registration renewal notice in 2019 in the joint names of the applicant and sponsor for an Isuzu motor vehicle;
(n) Letter dated 1 September 2016 from Resident Managers of a property at Southport confirming the sponsor’s residence at a unit in the property together with the applicant between September 2015 and March 2016;
(o) General tenancy agreement in the joint names of the applicant and sponsor for the period 1 April 2016 to 31 March 2017 for premises located at Ashmore, Queensland;
(p) General tenancy agreement in the joint names of the applicant and sponsor for the period 16 November 2018 to 17 November 2019 for the Southport home;
(q) Real Estate Tenant Payment History in the joint names of the applicant, the sponsor and the applicant’s son and daughter for the Southport home from 16 November 2018 to 11 August 2020;
(r)   Registration Confirmation Statement in joint names of the applicant and the sponsor for the purchase of a unit at Southport (the Southport unit) registered on 5 December 2019;
(s)   Rates and other notices in joint names of the applicant and the sponsor for the Southport unit and associated documents in relation to the joint purchase of that property in November 2019;
(t)    Cover-More Travel Insurance policies in joint names of the applicant and the sponsor;
(u) Various joint travel documents including various accommodation receipts in joint names, joint itineraries, and boarding passes showing adjoining airline seats in the names of the applicant and the sponsor for various trips;
(v)   Statutory declaration of Tatiana Kaukova dated 3 February 2020 declaring as to her knowledge of the applicant and the sponsor as being in a genuine relationship, including details of the basis of that declaration;
(w) Sample text messages between the applicant and sponsor in 2015, 2016, 2017, 2018, 2019 and 2020;
In the visa application lodged on 24 August 2016, the applicant stated as follows as regards the relationship:
(a) The parties first met on 15 August 2015 at Southport; and
(b) The de facto relationship commenced on 14 September 2015 and the parties committed to a shared life at the exclusion of all others on that date.
In a signed statement dated 14 October 2016 that accompanied the visa application, the applicant stated as follows as regards the relationship (unedited):
I, Yuk Ha Yeung, met Michael Oberhoff at Toyota Car Sale (Southport, Gold Coast) in Aug 2015. We had a nice talk. He told me a lot of knowledge and also many tips of purchasing a second-hand car. At that time, I only spoke limited English with very simple sentences and words. But he was always patient, and spoke slowly to ensure I can understand. I found he was a nice man, so we exchanged phone number and became friends. I usually relied on dictionary to continue the conversation when dating with him, so our communication was a bit difficult. But he still had a great patience and willing to teach me English, gave me time to progress step by step. We felt happy and comfortable together, so we began our relationship.
After we became a couple, I had a dispute with my landlord and decided to move away. Michael asked me to move in to his place, so that we had more opportunities to know each other and spend time together. I agreed with him, and we started living together in Sep 2015.
After living together, we have developed out relationship rapidly. We love each other and care of each other. Even though we have problems caused by communication difficulty, we solve all of them smoothly with our love, and we love each other deeper and deeper. Michael has a very healthy life style, he is also a responsible man. He takes so good care of me, making me feel I am a little girl. For the first time in my life, I felt completed be loved, I realised what is happiness. I totally fall in love with him, feel young once again.
We went back to Hong Kong in Feb 2016 to meet my families and friends. We also visited Xi'An and Henan in China. We went to Shao Lin Temple; my friends welcomed us with a nice banquet. I saw Michael drunk for the first time, it was very funny. I said yes to Michael's proposal on the night of 11 May 2016. We are planning to get married soon. Michael told me we are going to have our wedding ceremony both in Germany and Hong Kong. We also have plan to buy our own house and organise our life after he retired. I feel safe and happy with him; I love him so much; I enjoy the wonderful life with him and wish this will never stop.
In a signed statement that accompanied the visa application, dated 8 October 2016, the sponsor stated as follows as regards the relationship (unedited):
I met mandy in august last year [2015]. it was at the toyota car dealership in southport. I was looking around for a new car for work. But they didnt had much to choose from. I was just about to go when I saw her . She looked a bit lost, so we started talking. She told me that she is looking for a new car but is not sure which one. It was already late afternoon. There were no sales people left. So we talked a bit about the different types of cars and styles.
She had such a cute smile, I felt a connection between us straight away .
It was a bit difficult to understand her. Her english was very weak. But we had fun. I asked her if she would like to have a coffee or something. She said yes. I was surprised she did , but it made me happy .
We had a few dates after this, had some dinners, went for a few walks.
She told me that she had some problems with her landlady .she didnt liked her. Mandy said she is thinking of finding another place to live. So I suggested, why dont you move in with me. It is the best way to know each other and to find out if we are suitable for each other. After a while she agreed. Still not hundred percent sure if it is the right thing to do, or what her friends would say. She was very shy about it.
But after a while, i think it worked out just fine. I am so happy that we live together now. Everybody knows now that we are a couple and very good friends and lovers.
Mandy took me at the beginning of this year to hong kong .
She showed me all her friends and family. We went to a few different places.
Mandy showed me where and how she lived. I met her grandparents and brother
and all her closest friends . I also met her children [nancy and mathew]
when we got back to australia we got closer and more in love .
In may I asked her if she would like to marry me. And I am so happy that she said yes. We are engaged now.
I have plans for next year to go on holiday. We want to go to vietnam.
There we will catch up with some of my family and friends. We want to do a tour of two weeks in vietnam. Mandy and I will also go to cambodia for a few extra days.
Maybe we can use this trip as our honeymoon. It would also be a big surprise for my family and friends.
I am looking forward to spent my life with mandy . She is so caring , loving and sweet . [sic]
I do love her very much .i think she is the best thing that ever happened to me .

During separate interviews with a Departmental officer on 14 December 2016, the applicant and the sponsor both provided the same information in relation to how they met, that is, that they had met at a car yard.
At the end of each of the 14 December 2016 interviews, the Departmental officer informed the applicant and the sponsor that the Department had information suggesting that they first met through an introduction agency in Brisbane as the applicant was looking for an Australian citizen partner to sponsor her for a visa. The applicant was given an opportunity to respond to this information and the following was provided by way of a response:
(a) A Form 1023 Notification of incorrect answer(s) form dated 21 December 2016 as follows:
The applicant noted that the incorrect answer provided was ‘The location and date that applicant and sponsor met for the first time’ and that the correct answer was ‘Applicant and sponsor first met at Harbour Town Shopping Mall, Gold Coast in Aug 2015. Unable to remember the exact date.’
(b) Translated statement of the applicant including the following:
(i)The applicant and sponsor first met in August 2015 at Harbour Town Shopping Centre.
(ii)The applicant and sponsor admit that their first meeting was not at a car yard as originally stated in their statements.
(iii)The information provided to the Department regarding their initial meeting was not provided to deliberately deceive the Department in relation to the application.
(iv)The applicant and sponsor did not believe their initial meeting was material or relevant to the genuineness of their relationship and did not properly turn their minds to what significance their initial meeting would be for the application.
(v)The applicant and sponsor feel embarrassed in general that they met through a dating agency and avoid telling their friends and family where possible.
(vi)The applicant and the sponsor were afraid and felt intimidated by the dating agency and were worried that if they did not pay the agency the remaining money that the agency would tell an untruth to the Department and state that the applicant and the sponsor were not in a genuine relationship.
(vii) The applicant was approached by a dating agency. She was told by the agency that they had members who were eligible, professional gentlemen. They could offer love, companionship, security and were looking for real long‑term relationships. The applicant was told that she would need to pay an administration fee.
(viii)The agency requested that a fee of $6,000 be paid. The applicant agreed to pay a $3,000 fee as this was all she had at that time even though she believed the fee to be unusually high. Despite this, the applicant was pestered and convinced by the agency of their genuine and fantastic services. The applicant, being vulnerable and lonely, proceeded.
(ix)After paying the agency, the applicant did not want to go ahead and felt nervous about dating people through an agency. She told the agency that she did not want to continue. The applicant was told that her phone number had already been given to someone and that she would not get her money back. The sponsor called the applicant and asked to meet and so the applicant agreed, thinking that she had already paid and should give the sponsor a chance at least. The applicant and the sponsor first met at Harbour Town Shopping Centre.
(x)The sponsor was introduced to a number of women prior to meeting the applicant, however he did not ‘click’ with any of them. The applicant was introduced to the sponsor. The applicant and sponsor had an immediate connection. While the sponsor had been introduced to women before, the sponsor had not connected with any previous women.
(xi)The applicant and sponsor met and felt they had instantly connected. The applicant and the sponsor exchanged numbers. They both felt as though they did not require the agency any longer as they had found a strong match in each other.
(xii)After the applicant and sponsor had been together for around two months, the agency called the applicant. The applicant again told the dating agency that she no longer required their services. On hearing of this, the dating agency requested that more money be paid. The applicant explained that she did not think money should be paid as she had already paid a fee and believed that this covered the costs of their services, particularly as she had found a perfect match with very little help or intervention from the agency (besides an introduction) and there was no need to be introduced to further men. On hearing this, the representative of the agency became very angry. The applicant and sponsor agreed to pay no further money to the agency.
(c) Letter from the applicant, dated 20 December 2016, with an accredited translation, which included the following information:
(i)What the parties claimed in the visa application, in relation to their first meeting, was actually their second date. They told a ‘white lie’ because it was ‘simpler that way’, as they thought that if they told the truth they might be asked to provide evidence from the matchmaker/dating agent, Ellen, to prove the genuineness of their relationship. There was no way that Ellen was going to give any evidence to help the parties, as she was still angry at them for unpaid agency fees. The parties had a discussion and thought it best to describe their second date as their first meeting.
(ii)The applicant was introduced to Ellen through her landlord at the time. The landlord was a nice lady who knew that the applicant was single and that she wanted to find a boyfriend. As the applicant did not have many friends in Australia, she passed the applicant’s phone number on to Ellen. Ellen contacted the applicant and advised that she would find someone suitable for the applicant, but she would charge $6,000. The applicant refused to pay such a fee. One month later, Ellen came to the applicant’s place at the Gold Coast and discussed the matchmaking, and the applicant paid Ellen $3,000.
(iii)The applicant trusted her landlord, however regretted her decision and called Ellen the following day to seek a refund. Ellen refused, saying that she had already passed the applicant’s phone number on to a man, and that someone would call her.
(iv)Later on, the sponsor called the applicant, saying that Ellen had introduced him to the applicant, and the parties agreed to meet at Harbour Town Shopping Mall.
(v)When the applicant saw the sponsor, he looked friendly and gentle. His build was tall and strong, just the applicant’s type. The parties got on extremely well and felt very relaxed. They used simple English to communicate as the applicant’s English was very poor. As the applicant was looking to buy a new car, the parties agreed to go on a second date the following day at Toyota, as the sponsor offered to help the applicant choose a car. After that, the parties saw each other almost every day, and the applicant fell in love with the sponsor.
(vi)The sponsor asked the applicant to move in with him so that he could see her every day, so they had more time to get to know each other. The applicant agreed and the parties have lived together happily ever since.
(vii) About two months later, Ellen called the applicant to ask how she and the sponsor were getting along. After explaining that they were in love and living together, Ellen asked the applicant for the remaining $3,000. The sponsor was angry about this request and told the applicant not to pay the remaining $3,000, saying that the $3,000 she had already paid was more than enough. Ellen became very angry and the parties have had no further contact with Ellen since then. This is the reason why the parties kept their first meeting a secret.
(d) Letter from sponsor, undated, which stated (unedited):
Firstly i want to say that i am sorry for not beeing totally honest to you.
It was true that i had the first contact with mandy through a dating agency.
Our meeting at the car yard was our second date .
Everything else i sald to you and and all the other evidence and paperwork is true , I swear to god .
I am not sure how to explain to you or how to say it, but sometimes it gives a wrong feeling or impression . Specialy if you tell your friends or family. I know there is nothing wrong with it .specialy for people like me who are shy to meet someone. I have problems to go out and meet someone . I cant just walk up to someone and start talking . Thats why i joint this agency j:.. Eew years ago .
It had a differnt owner at that time
I met maybe six or seven woman over that time . But no one was suitable or didnt feel right. They were all nice woman , but it just didnt click . It was totally different with mandy. The first minute i saw her i fell in love . She was so cute and had a beautiful big smile .
It allhappend so fast. I think normaly it would take a long time before you move in with someone , but with mandy it was different.
After a few meetings and talks i ask her to move in with me. I couldnt walt for her to stay with me. To know more about her and learn about each other.
She is such a lovely person . She cares and worries about me and most of all she loves me . As much as i love her.
Like the other day, i had to go to coffs harbour to help a friend move house . I had to stay overnight. As i told her that she was crying . She said she cant sleep without me. She was also scared to stay home by herself
So she stayed with a friend .
We were talking about getting married in 2018.
Next year will be fairly busy. We have planned a lot of trips and hollydays.
In jan/feb [2017] we are going salling for one week in the withsundays. With three other couples
In april we weant to go back to hong kong and china. Mandy wants to show me more of her friends and family and also more from china.
In october/november 2017 we are going to vietnam for two weeks .
I will meet there my cousin and huseband from germany . We do a tour together.
So because it will be a busy and expensive year we thought we can plan the wedding for 2018.
It also gives my family some time to plan and organize. They will come from germany .
The applicant and the sponsor do not dispute that they initially provided incorrect information to the Department as to how they met.
At hearing, the applicant told the Tribunal that her Chinese aunty (landlord) introduced Ellen, from the introduction agency, to her because her aunty was concerned that she was over 40 already and if she became over 50, it would be very hard to find a partner again. When queried as to her circumstances at the time, the applicant stated that she was in Australia on a student visa, learning English, staying with her aunty and she was wanting to stay in Australia while her son was studying in Australia for a year. The applicant stated that she did not tell anyone that she was introduced to the sponsor by an agency. She told them she was introduced by her landlord, which in effect she was because her aunty/landlord had arranged the introduction. At the time she felt embarrassed about how they met. Their actual first meeting was for coffee at Harbour Town on the Gold Coast after the sponsor rang her on the phone number he obtained via the introduction agency.
The Tribunal discussed with the applicant that it might be understandable that she might not tell her family and friends how she met the sponsor given embarrassment about using an introduction agency. However, the Tribunal indicated that it might not accept that there was any cause for such embarrassment in her dealings with the Department and asked why the applicant had not told the Department at the start as to how they actually met. The applicant responded that she did not say anything in the actual visa application as to how she and the sponsor met, because it was not required. After that, she said she did not dare to mention it, including because she and the sponsor thought it was only a little thing, and because they are in a genuine relationship they did not think about other things.
At hearing, the Tribunal also:
(a) discussed the existence of the s.375A certificate dated 16 November 2017 with the applicants and the representative. The applicants’ representative confirmed that the applicants had a copy of the certificate. The Tribunal invited submissions on the validity of the certificate. No submissions were made. The Tribunal is satisfied that the certificate is valid, and on that basis it did not disclose the information the subject of the certificate to the applicant, but rather, disclosed the gist or particulars of the information, to the extent relevant to the issues before the Tribunal, to the applicant.
(b) adopting the procedures set out in s.359AA of the Act, put to the applicant the gist or particulars of that information, specifically that the applicant and the sponsor had met through an introduction agency and that the applicant told the introduction agency that her daughter and her ex-husband did not want her to marry the sponsor, that all she would have to do was live with him for a short period of time so that she could get permanent residency (in Australia) and then would not have to continue with the relationship. The Tribunal indicated that the reason the information is relevant is if the Tribunal concluded that the only motivation for the applicant being in a relationship with the sponsor was to obtain permanent residency (in Australia) and that they were not in a genuine relationship, then that would mean the Tribunal would affirm the decision under review to refuse to grant the visa on the basis that the Tribunal was not satisfied the relationship was genuine, both at the time of the visa application and now.
The applicant responded to the information put to her by the Tribunal. She told the Tribunal that she understood the information but did not understand why the introduction agency had said that. The applicant stated that she disagrees with what the introduction agency has said. The Tribunal raised with the applicant that it might conclude that one of the reasons she was seeking a partner was to obtain permanent residency but that she might also have been seeking a partner because she did not want to be alone. The applicant responded that she did not do it just for the visa. She wanted to have a spouse. She does not understand why the introduction agency has said that. She did not do this just for the visa. At the moment she met the sponsor, she was wanting to find her other half. She was only new in Australia and he was very caring about her. He gave her a lot of attention and care. She truly fell in love with him and wanted to stay with him. She feels like she has found her other half. They now have a stable relationship. The sponsor had no family here (in Australia). He is not talkative and open and now that she is married to him, he has a family. Her daughter has a very good relationship with him. They have future plans together. The next thing they want to do is to go to Germany to visit the sponsor’s mother because his mother is very old. They have also planned to go on a holiday to New Zealand in October 2020, with the sponsor’s family from Germany. These plans are all uncertain at the moment because of coronavirus but that is what they have been planning. They do not have big fights. They do sometimes have small arguments because of communication problems. They sometimes have differences of opinion but every morning he makes her coffee and breakfast. They do have fights and arguments, but they love each other. The fights and arguments are just normal disagreements like anyone in a relationship has. By way of example, she gets annoyed when he leaves things messy around the house – leaving his slippers everywhere, leaving a knife out on the bench when he uses it for butter or cheese. The Tribunal noted that one of the text messages provided to the Tribunal shows the applicant sending the sponsor a photo of a knife and board that the sponsor has left messy on the bench. The applicant said that they are currently renovating the unit they purchased at the end of 2019 and she is always changing her mind about the renovations and that annoys the sponsor. They also disagree about the stock she has in her Bubble Tea shop. She likes to order more, and he does not agree.
The sponsor told the Tribunal that he and the applicant are married and that he loves his wife. He said that the whole process has taken an emotional toll on them. He said he feels like he has a family with his wife and her children and that he has never had a family and feels very lucky. He said that he is very fond of his wife’s children and he is very happy. When queried, the sponsor told the Tribunal that he and his wife do have some little disagreements, including because of the cultural/language differences. He said there are quite a few times when they have a difference of opinion but they ultimately sort things out. By way of example, the sponsor said that they disagree about the stock levels the applicant should hold in her shop given the restricted storage they have. The sponsor said they have also had minor disagreements about the current renovation they are doing – in particular with the bathroom. The sponsor told the Tribunal that he does little things that annoy his wife – for example, he puts the liner in the bin in a way that she does not like.
The second-named and third-named applicant jointly told the Tribunal that they recognise the applicant, their mother, and the sponsor as being in a genuine relationship. The second-named applicant stated that the applicant and the sponsor are like a normal couple, she attended their wedding and she has understood them to be a couple for the last five years. The third-named applicant told the Tribunal that the applicant’s and the sponsor’s relationship is real and that he feels comfortable with them, and he would really like to continue living together. He said that his mother likes cooking, and they always have dinner together like a normal family.
Issue 1 – Were the de facto criteria met at the time of the visa application?
Were the requirements for a de facto relationship met?
The Tribunal has had regard to all of the circumstances of the applicant’s and sponsor’s relationship, including the r.1.09A(3) matters to which it is required to have regard.
The Tribunal notes that to the extent that later events logically show the existence or non‑existence of facts that existed at the time, those later events may be taken into account to show the existence or non-existence of facts that existed at the time of application: Bretag v MILGEA [1991] FCA 582 (Bretag).
Financial aspects of the relationship – any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, especially in relation to major financial commitments, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day to day household expenses
The Tribunal is satisfied that the applicant and the sponsor have resided together since September 2015 pooling their financial resources to meet day to day living expenses. Notably, the evidence before the Tribunal includes joint bank statements from October 2015 to date showing multiple regular transactions by two separate card holders. Of note, in August 2016, the month of the visa application, the types of transactions include the types of transactions, in terms of regularity and type, that might be expected for joint household expenses, including by way of example, groceries (Woolworths) on card number ending 3041, clothing (Just Jeans) on card number ending 3041, convenience store (7-Eleven) on card number ending 3041, hardware (Bunnings) on card number ending 3041, hardware (Bunnings) on card number ending 3058, groceries (Coles) on card numbering ending 3058, dining out (Yum Cha) on card numbering ending 3058, Tyres (Jax Tyres) on card number ending 3058, fuel (Caltex) on card number ending 3041, groceries (Friendly Grocer) on card number ending 3041 and dining out (Grill’d) on card numbering ending 3041. Further, the evidence, written and oral, before the Tribunal supports that, in addition to other joint asset ownership (such as joint ownership of the applicant’s Bubble Tea business via a trust), the applicant and the sponsor have recently jointly purchased real estate, specifically a unit at Southport. Notably the applicant and the sponsor own this property as joint tenants, evidencing a financial and mutual commitment to each other rather than to their heirs and assigns as would be evidenced if the property was held as tenants in common.

The Tribunal is satisfied based on the evidence, including evidence that post-dates the date of the visa application (see Bretag), that at the time of the visa application the financial aspects of the applicant’s and the sponsor’s relationship were consistent with their claimed relationship as de facto partners at the time of the visa application on 24 August 2016.
Nature of the household – any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework
The Tribunal accepts the oral evidence of the applicant and the sponsor, supported by documents including tenancy agreements, that they have lived together since September 2015. The Tribunal accepts that at all times, including at the date of the visa application, they have shared the responsibility for housework. Given the age of the applicant’s children, the secondary visa applicants, aged 18 and 20 at the time of the visa application, the Tribunal is satisfied that no hands‑on care of them has been needed since the inception of the applicant’s and the sponsor’s relationship. However, based upon the oral evidence of the applicant, the sponsor and both secondary applicants, the Tribunal accepts that the applicant’s children accept the sponsor as part of their family. The Tribunal is satisfied based on the evidence, including evidence that post-dates the date of the visa application (Bretag), that at the time of the visa application the nature of the applicant’s and sponsor’s household was consistent with their claimed relationship as de facto partners at the time of the visa application on 24 August 2016.
Social aspects of the relationship – whether the persons represent themselves to other people as being in a de facto relationship with each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities
The Tribunal has regard to the photographs and statutory declarations provided to the Department in relation to the social aspects of the applicant’s and sponsor’s relationship. The Tribunal has also had regard to the further documentary evidence, including numerous photographs provided to the Tribunal as set out earlier these Reasons. The Tribunal also had regard to the oral evidence of the applicant, the sponsor and the secondary applicants at hearing. The Tribunal is satisfied that at the date of the visa application, the applicant and the sponsor represented themselves as being in a de facto relationship with each other, and that it was the opinion of their friends and acquaintances that that was the nature of their relationship. Further, the Tribunal is satisfied that they planned and undertook significant joint social activities, as is evidenced by the detailed documents and numerous photographs provided both to the Department and the Tribunal, including evidence post-dating the date of the visa application (Bretag) as identified and listed earlier in these Reasons.
The Tribunal is satisfied that at the time of the visa application, the social aspects of the applicant’s and sponsor’s relationship were consistent with their claimed relationship.
Nature of persons’ commitment to each other – the duration of the relationship, the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other and whether the persons see the relationship as a long‑term one
Based on the evidence, the Tribunal accepts that at the time of the visa application on 24 August 2016, the applicant and sponsor had known each other for just over a year and had committed to a long‑term relationship, and lived together, for approximately 11 months. The Tribunal is satisfied that from September 2015, the applicant and the sponsor saw their relationship as long‑term and that they have provided a significant degree of companionship and emotional support to each other.
The Tribunal is therefore satisfied that at the time of the visa application, the applicant and sponsor had a significant mutual commitment to each other and saw their relationship as a long‑term one, consistent with their claimed relationship.
Conclusion
The Tribunal acknowledges the understandable concerns that have previously arisen in relation to the acknowledged incorrect information provided by the applicant and the sponsor as regards the inception of their relationship. The Tribunal observes that people may lie for any number of reasons. Notably, the lies about the inception of the applicant’s and the sponsor’s relationship were told not just to the Department but also initially to the couple’s friends. The Tribunal accepts that it is understandable that the applicant and sponsor might genuinely be embarrassed as to their manner of meeting via an introduction agency. The Tribunal holds a concern, however, that the couple provided false information to the Department in circumstances where they were attesting as to the truth of the information, and in circumstances where they had no basis to feel personal embarrassment regarding their initial meeting, as is understandable as regards their friends and family. However, the Tribunal accepts that people may provide false information about aspects of a relationship, and still be in a genuine relationship. It may well be that the applicant did have an initial motivation of seeking an Australian citizen or permanent resident partner as a means of gaining permanent residency in Australia. However, the Tribunal accepts that there may be multiple motivations for entering a relationship, as was recognised in Garcevic v MIAC [2012] FMCA 931, citing the Full Federal Court of Northrop, Wilcox and French JJ in Minister for Immigration & Anor v Dhillon [1990] FCA 144:
… people enter marriages for a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as ‘community expectations’. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others …
Whatever the applicant’s, or indeed the sponsor’s, initial motivations for entering a relationship with each other may have been, importantly as the Federal Court recognised ‘is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life … to the exclusion of all others’. Having taken into account all of the circumstances of the relationship, including the r.1.09A(3) matters to which it is required to have regard, the Tribunal is satisfied that at the time of the visa application, that the applicant and the sponsor were not in a married relationship, that they had a mutual commitment to a shared life to the exclusion of all others, that the relationship between them was genuine and continuing and that they were living together. Further, they are not related by family.
In reaching its conclusion, as already noted, the Tribunal has also taken into account subsequent events that have transpired as regards the applicant’s and sponsor’s relationship (Bretag).
The Tribunal is therefore satisfied that the requirements of s.5CB were satisfied at the time of the visa application. As the requirements of s.5CB are all met, the Tribunal is satisfied that at the time of the visa application, the applicant was the de facto partner of the sponsor.
Are the additional criteria for a de facto relationship met?
Were each of the applicant and the sponsor at least 18 years of age?
The Tribunal has sighted identity and other documents in relation to the applicant and the sponsor and is satisfied that they have both been at least 18 years of age at all relevant times.
Had the applicant and the sponsor been in a de facto relationship for at least 12 months prior to the date of the visa application?
Subject to the exceptions specified in r.2.03A(4) and (5), the Tribunal must also be satisfied for visas of this kind that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the visa application, unless compelling and compassionate circumstances exist for the grant of the visa: r.2.03A(3).
Based upon the evidence, while the Tribunal is satisfied that the applicant and the sponsor were in a de facto relationship at the time of the visa application, it is not satisfied that they were in a de facto relationship for at least 12 months prior to that time. While they met in August 2015, on their own evidence it was not until mid-September 2015 that they committed to a long‑term relationship and commenced living together.
Are there compelling and compassionate circumstances for the grant of the visa or were there other circumstances existing such that the requirement to have been in a de facto relationship for at least 12 months prior to the date of the visa application does not apply?
Relevantly, r.2.03A(5) provides that r.2.03A(3) does not apply if the de facto relationship is a relationship that is registered under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those regulations. The applicant has provided a Civil Partnership Certificate dated 6 July 2016 in accordance with s.9 of the Civil Partnerships Act (Queensland) 2011 to the Tribunal. The Civil Partnerships Act (Queensland) 2011 is prescribed.
The Tribunal therefore finds that based on the Queensland Civil Partnership Certificate, r.2.03A(3) does not apply.
For these reasons, the Tribunal is satisfied that the additional criteria prescribed in r.2.03A(2), and therefore r.2.03A, are met.
Issue 2 – Is the applicant the spouse of the sponsor now, at the time of decision?
Are the applicant and the sponsor validly married?
If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.
The Tribunal has sighted a certified copy of the couple’s Marriage Certificate which states that they were married at Ashmore, Queensland, on 14 October 2017. The Tribunal is satisfied that there was no impediment to the applicant’s and the sponsor’s marriage and is satisfied on the evidence that they are and remain married to each other under a marriage that is valid for the purposes of the Act.
The Tribunal is therefore satisfied that paragraph (a) of s.5F(2) of the Act is now satisfied at the time of the decision.
Are the other requirements for a spousal relationship met?
The Tribunal considered all of the circumstances of the applicant’s and sponsor’s relationship, including the r.1.15A(3) matters to which it is required to have regard in considering whether the other requirements for a spousal relationship were met at the time of decision. The Tribunal has taken into account similar evidence in relation to the circumstances of the applicant’s and the sponsor’s relationship now, as taken into account in relation to the circumstances of their relationship at the time of the visa application. Having had regard to all of the evidence, the Tribunal is satisfied that the financial aspects of the applicant’s and the sponsor’s relationship continue to be consistent with their claimed relationship. The Tribunal is also satisfied that they continue to live together and that they share responsibility for housework. The Tribunal is satisfied that the applicant and the sponsor are now married and represent themselves to friends and acquaintances as being married, following their wedding on 14 October 2017. The Tribunal is also satisfied, based on the statutory declaration referred to earlier in these Reasons, the oral evidence of the secondary applicants and the voluminous supporting documents and photographs, that they are recognised by friends and acquaintances (and relatives) as being married to each other. The Tribunal is also satisfied that the applicant and the sponsor plan and undertake numerous social activities together, as corroborated by the documentary evidence. The Tribunal is also satisfied that the nature of the applicant’s and the sponsor’s commitment to each other is significant, having now known each other for over five years, having lived together continuously for nearly five years, having been married for nearly three years and now also having purchased a unit together as joint tenants. The Tribunal also had the benefit of observing an obvious connection between the applicant and the sponsor at hearing, including as evidence by them separately giving consistent but not identical evidence as to their day to day living arrangements and habits, and accepts that the applicant and the sponsor continue to see their relationship as long-term. The Tribunal also accepts based on the evidence that they provide a very significant degree of companionship and emotional support to each other.
Having taken into account all the circumstances of the applicant’s and the sponsor’s relationship, including the r.1.15A(3) matters to which it is required to have regard, the Tribunal is satisfied that now, at the time of decision, the applicant and the sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship between them is genuine and continuing and that they live together. The Tribunal is therefore satisfied that paragraphs (b)-(d) of s.5F of the Act are satisfied now at the time of decision.
Conclusion
As the Tribunal has found that paragraphs (a)-(d) of s.5F of the Act are met, the Tribunal concludes that the requirements of s.5F are satisfied at the time of decision such that the applicant and the sponsor are in a married relationship and the applicant is therefore the spouse of the sponsor.
Issue 3 – Is the sponsor prohibited from being a sponsoring partner?
There is no evidence before the Tribunal that the sponsor is prohibited under cl.820.211(2B) from being a sponsor.
Issue 4 – Is the applicant sponsored as required?
The sponsor sponsored the visa application and is over the age of 18 years. The Tribunal finds that the requirements of cl.820.211(2)(c) are met.
Issue 5 – Did the applicant hold a substantive visa at the time of the visa application?
Departmental records show, and the Tribunal finds, that the applicant held a substantive visa at the time of the visa application. Clause 820.211(2)(d) is therefore met.
Conclusion
As the Tribunal has found that the requirements of s.5CB(2) were met at the time of the visa application and that the additional criteria for a de facto relationship are satisfied pursuant to r.2.03A, the Tribunal finds that at the time of the visa application, the applicant was the de facto partner of the sponsor. As the Tribunal has found that the requirements of s.5F(2)(a)-(d) are met at the time of decision, the Tribunal is satisfied that at the time of decision the applicant and the sponsor are in a married relationship and therefore the applicant is now the spouse of the sponsor pursuant to s.5F of the Act. Further, there is no evidence that the sponsor is prohibited from being a sponsor and the Tribunal has found the applicant is sponsored as required and held a substantive visa at the time of the visa application. The Tribunal therefore finds that the requirements of cl.820.211(2) were met at the time of the visa application and continue to be met at the time of decision such that cl.820.221(1) is also met.
As the second-named and third-named applicants applied as secondary applicants, their applications will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration.
Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for Subclass 820 visas.
OTHER MATTERS
As discussed with the applicants and representative at hearing, paragraph 8.2 of the Tribunal’s President’s Direction – Conducting Migration and Refugee Reviews (1 August 2018) which states that as a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, that the Tribunal should restrict its review to those matters. Whilst the Department did canvass other issues with the applicants during the application process, in particular regarding the false information admittedly provided to the Department, the Tribunal has confined its consideration to the criteria in relation to which the delegate made an adverse decision. Upon remittal, the remaining criteria for the visas will be considered.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211(2) of Schedule 2 to the Regulations
·cl.820.221(1) of Schedule 2 to the Regulations
·r.2.03A.
Susan Trotter
Member

[2020] AATA 4137

19 August 2020

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