1417204 (Migration)

[2016] AATA 3523

1417204 (Migration) [2016] AATA 3523 (16 March 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Monica Keat

VISA APPLICANT:  Mr Sokthoeun Hak

CASE NUMBER:  1417204

DIBP REFERENCE(S):  2013089286

MEMBER:Mary Urquhart

DATE:16 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 16 March 2016 at 2:37pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 August 2014 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Mr Sokthoeun Hak born 6 July 1985 applied for the visa on 25 September 2013 on the basis of his relationship with his sponsor, Ms Monica Keat, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate did not accept that the relationship between the applicant and sponsor was genuine. The delegate noted in particular inconsistencies in the evidence given by the parties at interview; he noted that there was no evidence of claimed cohabitation and that the parties provided no credible evidence of regular ongoing and meaningful communication as would be expected between genuine spouses. For these reasons the delegate

4. The review applicant appeared before the Tribunal on 16 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Sokthoeun Hak by telephone from Cambodia.

5. The review applicant was represented in relation to the review by her registered migration agent.

6. Prior to the hearing  the Tribunal  received a submission attaching further documentation including

   ·     A Statutory Declaration from the sponsor dated 10 March 2016.

   ·     Money transfer receipts for the following dates 18/9/15; 4/11/15; 12/11/15;16/12/15; 4/1/162/2/16 (total amount $1,159.76 USD).

   ·     Copies of screen shots of phone calls and Skype communications.

   ·     An ownership transfer deed and application for land registration in the applicant’s name dated. The  land is described as being 4,500 sq. meters; it is described as  part of a commune.

   ·     Passport information regarding the sponsor’s travel.

   ·     Centrelink information.

   ·      Medical certificates and letter of support for the   sponsor dated 12/2/16.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the parties were, at the time of application, and are, at the time of decision, in a genuine and continuing spousal relationship.

9. The applicant is a 32 year old man born in Phnom Penh and living in Cambodia; he  claims to be the spouse of the sponsor. He has two sisters living in Australia. He gives his occupation as working for a company in the marketing field.

10. The sponsor is a 28 year old Australian born citizen of Cambodian decent. She  is currently unemployed due redundancy following liquidation of the company sh3e was working for. She gave evidence of actively seeking employment and holds a number of certificates which qualify her for employment.

11. Neither party has been previously married.

12. The parties claim to have been introduced by the applicant’s sister. The first contact between the applicant and sponsor is said to have been in January 2013. The parties first met in person on 5 May 2013 when the sponsor travelled to Cambodia. They married in a traditional ceremony over two days being on 22 and 23 May 2013. The marriage was registered on 8 July 2013.

    Whether the parties are in a spouse or de facto relationship

13. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

14. ‘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 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. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

    Are the parties validly married?

15. The department’s records (which are consistent with Ms Keat’s evidence) show that she was outside Australia from 4 May -30 June 2013.

16. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. As set out above, the couple were married in Phnom Penh on 22/23 May 2013. They registered their marriage on 8 July 2013. An extract of the certificate of marriage was submitted to the Department. 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 spousal relationship met?

17. As a preliminary matter, the Tribunal notes the delegate’s concerns with inconsistencies in the evidence given by the parties at interview. Since then, the Tribunal has had the advantage of further evidence being submitted and a Statutory Declaration sworn by the sponsor. It has had an opportunity to question the parties at length about the relationship. The Tribunal is satisfied that the relationship between the review applicant and visa applicant is one of mutual commitment and of a genuine spousal nature within the meaning of s.5F of the Act, in particular the Tribunal  finds that the requirements in s.5F(2)(b) – (d) are  met.

18. On the basis of the evidence before it the Tribunal finds that the parties were introduced and commenced a telephone relationship, then met in parson in May 2013 and  have been in a relationship with each other since then.

    Financial aspects

19. There was unsupported oral evidence that the sponsor provided some financial support to the applicant. This evidence was found by the delegate to contain certain inconsistencies. In her statutory declaration and at the hearing the sponsor sought to explain the inconsistencies. She claims they resulted from a misunderstanding. The Tribunal accepts some aspects of interpretation may have contributed to the inconsistent evidence. The Tribunal notes the sponsor’s evidence now is that she supports the applicant financially when she is able to. This was easier when she was working but is difficult since her redundancy. In support of this she as submitted past receipts for money transfers and evidence of ceasing work and Centrelink information.

20. The parties claim to own real estate as a joint asset. This is in the form of land purchased in Cambodia using money largely given to the parties at their wedding. The sponsor gave evidence that she believed the land cost about $7500USD; this was confirmed by the applicant. The sponsor gave evidence that it was the applicant’s idea to use this dowry money to buy the land and that though it is in his name only she agreed as he seemed to know that it was a good idea. Asked if there was any proof of the value or purchase, the applicant replied “no”. The Tribunal acknowledges the evidence but in the absence of independent proof that such land is a jointly paid for purchase places little weight on it as evidence supporting a genuine spousal relationship.

21. The Tribunal accepts receipts submitted indicate that the sponsor has transferred money to the applicant for his needs on some 4 or 5 occasions. However, there is no evidence of pooling of financial resources and no independent evidence of the sharing of day to day household expenses at this time.  Neither party owes a legal obligation to the other party. The visa applicant and sponsor currently reside in different countries and as a result the Tribunal discounts evidence regarding financial matters in assessing the genuine.

    The nature of the household

22. The Tribunal notes the parties live in different countries and have only spent a relatively short period of time together. However, the Tribunal notes that following the marriage the evidence is that the parties did travel on holiday together taking what could be described as a honeymoon. As well the review applicant has subsequently returned to Cambodia to visit the visa applicant.

    Social recognition of the relationship

23. In relation to the social recognition of the relationship, the Tribunal has had regard to the evidence submitted in support of the relationship being genuine. The evidence provided is largely from the sponsor’s family members, being her two aunts, her two brothers, her mother and her brother in law. The Tribunal notes and gives weight to the evidence that many family members of the sponsor travelled to Cambodia for the wedding. The Tribunal accepts that two friends of the sponsor also attended; one from France and a good friend from Australia. The applicant’s family were also present at the marriage. The Tribunal gives weight to the attendance of family from both sides at the wedding.

24. At the hearing the sponsor gave evidence that her doctor is aware of her married status as are professionals she deals with at Centrelink including “Sophie” her recruitment officer  and “Nicola” her Centrelink social worker. The Tribunal accepts this evidence as reliable and credible.

25. The Tribunal has considered recent photographs of the parties together in Cambodia in 2015. The Tribunal accepts that the parties have engaged in social activities together, have spent time out and about in Cambodia, and have spent time with the visa applicant’s friends and family. Whilst the evidence of a broader recognition of the parties as a married couple is quite limited the Tribunal is satisfied the available evidence demonstrates a sufficient degree of social recognition.

    The nature of the persons' commitment to each other

26. The Tribunal has before it documentary evidence of phone calls and Skype contact between the parties. The Tribunal accepts there is evidence the parties have been and are communicating. While they had not yet met in person until shortly before the marriage, the Tribunal accepts that they knew each other well and that by the time they met in person they had decided to make a significant commitment. The Tribunal finds that at the hearing the parties demonstrated a good knowledge of each other’s lives and the issues confronting them on a day to day basis. The Tribunal finds the parties demonstrated a sound level of emotional support for each other despite their geographic separation.

    Other relevant considerations

27. The Tribunal recognizes the concerns of the delegate as to the lack of evidence available regarding the relationship at the time of the delegate’s decision. However the Tribunal notes that the review applicant has returned to Cambodia to spend time with the visa applicant since the time of the primary decision, and has accumulated evidence of communication with the visa applicant since that time. She has provided evidence of money transfers. Consequently the Tribunal has before it more documentary evidence as to the parties’ communications, financial arrangements, and ongoing plans for the future than was available to the delegate. The Tribunal also has the benefit of a further submission and detailed Statutory Declaration by the review applicant.

28. Accordingly the Tribunal is satisfied that at the time the visa application was made and the time of this decision the parties were in a spousal relationship.

29. Therefore the visa applicant meets cl.309.211 and cl.309.221.

30. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

31. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations, and

    ·cl.309.221 of Schedule 2 to the Regulations

    Mary Urquhart
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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 sub regulation (3).

    (3)The matters for sub regulation (2) are:

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

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

    (ii)      any joint liabilities; and

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

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

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

    (b)the nature of the household, including:

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

    (ii)      the living arrangements of the persons; and

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

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

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

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

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

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

    (i)       the duration of the relationship; and

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

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

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

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