• cl 820.211 of Schedule 2 to the Regulations.
• cl 820.221 of Schedule 2 to the Regulations

MIGRATION - Partner (Temporary) (Class UK) visa - Subclass 820 (Partner) - genuine and continuing relationship - validly married - financial, household and social aspects of relationship and nature of commitment - passage of time, personal statements, extensive documentation and photographs of socialising and travel - decision under review remitted

Migration Act 1958 (Cth), ss 5CB(2), 5F(2), 65

Migration Regulations 1994 (Cth), Schedule 2, cls 820.211(2)(a), 820.221

He v MIBP [2017] FCAFC 206

1. This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The first named applicant (the applicant) applied for the visa on 17 November 2019, on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221(2)(a) because they were not satisfied the applicant was in a genuine spousal relationship as required by section 5F.
4. The applicants were represented in relation to the review.
5. For the following reasons, the Tribunal has concluded that the decisions under review are set aside, and the matter should be remitted for reconsideration.

1. The issue in the present case is whether the couple are in a genuine spousal relationship as defined by 5F of the Act.
2. In determining the applicants' claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
3. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.
4. The Tribunal has read and carefully considered all the evidence submitted to the Department and the delegate.
5. The Tribunal has read and carefully considered all the additional evidence presented to It prior to making this decision.

Whether the parties are in a spouse or de facto relationship

1. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.
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. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties' household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married in a civil ceremony at Salisbury East, South Australia on 25 October 2019. The Tribunal has viewed the appropriately signed and sealed certificate and is satisfied it is authentic. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

Are the other requirements for a spouse relationship met?

1. The review applicant lodged a valid application for a Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa on 17 November 2019.
2. The Tribunal has viewed the Passport details and reviewed the Departmental immigration data for both the sponsor and the visa applicant and has verified they are substantially therefore beyond the age of 18.
3. The Tribunal has considered the documentary evidence provided to both the Department and the Tribunal. The Tribunal has had the benefit of a significantly greater volume of relevant evidence presented to it than was afforded the delegate in the original application process and the subsequent request for further information. This has in part occurred because of the elapsed time following the application is approximating 6 years and the couple it would appear now have a better understanding of what evidence is required in order to substantiate their claims.
4. It also notes the Covid-19 pandemic may have made it far more difficult to amass substantial evidence in support of the couple's case for a period of time, as a direct result of the societal changes associated with isolation norms.

1. In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, legal obligations and the sharing of daily household expenses.
2. The delegate was not satisfied that the couple had demonstrated that the financial aspects of the relationship were consistent with two people in a genuine and continuing relationship as insufficient evidence was provided.
3. The Tribunal has accepted into evidence a range of documents, which in addition to the evidence available to the delegate at the time of the original decision, demonstrate a more substantial degree of financial inter-dependence. This evidence also demonstrated the visa applicant's child living with the couple.
4. The joint bank account statement for a 6-month period from 1 June 2023 clearly demonstrates the ongoing pooling of some financial resources as a couple. They demonstrate considerable movement in and out of the account for family type expenses.
5. Evidence of the updated family Private Health Insurance has been provided covering all 3 individuals. Not possible unless the fund agrees they are a family unit.
6. The home in which they both reside is still in the sponsor's name and a satisfactory explanation was provided in the applicant's statement. It is accepted they wish to avoid Government imposed taxation imposts associated with transfer fees. It would make no sense to incur the exorbitant transfer taxes required by the SA Government if they transferred into joint ownership prior to the point when the applicant's visa is approved.
7. Energy Australia Electricity bills show the sponsor and the applicant as being jointly responsible at their residential address.
8. A substantial number of varied invoices for purchases and internet are addressed to the visa applicant at the joint home address.
9. Invoices for orthodontics treatment for both the primary and secondary applicant are paid for by the sponsor.
10. The ATO Tax Return Declarations for the sponsor, for FY 2020, 2021 and 2022 clearly indicates the applicant as his spouse and her daughter as a dependant.
11. The Tribunal accepts as further demonstrable evidence of the financial commitment the Will of the sponsor and the Superannuation Death Benefit nomination. It is accepted that like all of the substantial evidence of the financial interdependence of the couple this can be changed at any time but in the Tribunal's experience such statements of financial commitment rarely are.
12. The Tribunal accepts as fact that until the visa applicant is awarded a substantive visa, the opportunities to make substantial joint asset purchases or borrow funds from lending institutions are extremely limited.
13. The Tribunal finds the unsubstantiated photographs of individuals purported to be in the Philippines and receiving funds from the couple as credible.
14. The Tribunal places substantial weight on the forementioned evidence. It is satisfied that the applicants demonstrated that the financial aspects of the relationship were consistent with two people in a genuine and continuing relationship.

1. The Tribunal has considered in relation to the nature of the household any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.
2. The Tribunal is in receipt of personal statements in the form of Form 888 Statutory Declarations from the father of the sponsor and friends. It is also in receipt of personal statements from the sponsor and applicant. All of this evidence when cross-referenced leaves the Tribunal in no doubt of their accuracy in indicating an extended family household unit which includes the sponsor's father, applicant and her daughter.
3. It notes the statements discuss the time prior to marriage when the sponsor returned to the Philippines and assisted his now wife following the untimely death of her father. It accepts the claims of assisting with the applicant's father's funeral expenses are entirely plausible. Claims of ongoing assistance with family expenses are accepted by the Tribunal as fact. Correlation of this is in the form of statements made by the applicant's sister residing in the Philippines.
4. The Tribunal notes the unembroidered statements regarding the household dynamics and accepts them as probable.
5. The Tribunal places substantial weight on this evidence in support of the applicant's claims of a genuine relationship.

1. In assessing the social aspects of the relationship, the Tribunal has considered social interactions, evidence of joint social activities, representation of their relationship to others and recognition of the relationship by friends and family.
2. The Tribunal accepts as substantial the correlating evidence given in support of this aspect from a broad range of family and friends as well as the applicant and sponsor. It is satisfied this is clear evidence in a form it finds entirely plausible. There is no evidence before it to suggest otherwise.
3. A diverse range of photographic evidence across multiple temporal reference points clearly shows a social life interacting with the community, their respective families and a love of travel. The evidence is so complete and diverse the Tribunal finds it implausible that it could have manufactured for immigration purposes. It further observes the natural interactions demonstrated showing the family and social dynamics and the regular inclusion of the applicant's daughter in such interactions.
4. The Tribunal was surprised by the unsupported statements made by the delegate, regarding the shape and form of the couple's wedding and associated celebrations. It is unsurprising a new immigrant to this country would have few very family and friends in attendance. It observes the evidentiary statements regarding the sponsor and likewise finds a small intimate wedding most likely course of action when considering the couple's preferences.
5. The Tribunal places substantial weight on this evidence in favour of the applicant and the genuine nature of the relationship.

1. In relation to the nature of the commitment, the Tribunal considered the nature of the parties first meeting, relationship development, length of time living together, degree of companionship and mutual emotional support and whether they see the relationship as long term.
2. There is now a more substantial body of evidence to which the Tribunal can confidently refer and take into consideration.
3. The Tribunal has formed the view that it is unlikely the sponsor and the applicant would be able to commit a ruse in excess of 6 years successfully, if they were not in a genuine relationship. The length of the relationship in itself strongly suggests the genuine nature of the claimed relationship both at the time of application and currently at the time of this decision. The inclusion of a child being jointly parented adds further weight to the evidence.
4. The Tribunal notes the details on the Emergency Contact form for the secondary applicant registered with her school. It likewise notes the Emergency Contact details listed in relation the sponsor's work.
5. The Tribunal notes substantial evidence of multiple family holidays submitted in the form of accommodation information and photographs.
6. The Tribunal concurs with the statement made by the applicant's legal representative on 7 February 2024 and reproduced in part below.

... 'In their relationship statements, the couple have provided information about their shared life together, detailing the intimacy in their relationship, their mutual respect and admiration for each other, and the strong extent of the emotional, practical and financial support they provide for each other. We submit that the couple are committed to a shared life together with the exclusion of others.' ...

1. The Tribunal has placed substantial weight on the overall nature of the commitment evidence in favour of the applicant.
2. On the basis of the above the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time the visa application was made and the time of this decision.
3. The Tribunal is satisfied there is a mutual commitment to shared life to the exclusion of others. There is a genuine and continuing relationship, and the couple live together, not separately and apart on a permanent basis.
4. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision.
5. Therefore, the applicant meets cl 820.211(2)(a)] and cl 820.221.
6. Given the findings above, the appropriate course is to set aside the decisions under review and remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

1. The Tribunal sets aside the decisions under review and remits the applications for Partner (Temporary) (Class UK) visas for reconsideration in accordance with the order that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

• cl 820.211 of Schedule 2 to the Regulations
• cl 820.221 of Schedule 2 to the Regulations

Representative for the Applicant: Ms Trang Doan Vu

**ATTACHMENT - Extract from Migration Regulations 1994

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

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

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

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

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

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

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

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

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

(ii) any joint liabilities; and

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

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

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

(b) the nature of the household, including:

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

(ii) the living arrangements of the persons; and

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

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

(i) whether the persons represent themselves to other people as being married to each other; and

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

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

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

(i) the duration of the relationship; and

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

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

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

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