1419640 (Migration)

[2016] AATA 3593

1419640 (Migration) [2016] AATA 3593 (21 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Naichanok KONGCHAROEN

CASE NUMBER:  1419640

DIBP REFERENCE(S):  BCC2014/2393494

MEMBER:Miriam Holmes

DATE:21 March 2016

PLACE OF DECISION:  Melbourne

DECISION: The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 572 visa:

·CL.572.322 of Schedule 2 of the Regulations.

Statement made on 21 March 2016 at 9:45am

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 10 November 2014 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Ms Kongcharoen, applied for the visa on 22 September 2014. The delegate refused to grant the visa on the basis that the applicant was not a member of the family unit of Mr Srisroemrat, the primary visa applicant.

3. The applicant appeared before the Tribunal on 18 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Srisroemrat, who is the applicant's husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

4. The applicant was represented in relation to the review by her registered migration agent, although the representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether at the time of decision the applicant is a member of the family unit of Mr Srisroemrat.

7. Clause 572.322 states as follows:

   572.322

   The applicant is a member of the family unit of a person (the primary person):

   (a)      who is the holder of a Subclass 560 or 562 visa and who meets one of the following:

   (i)      the primary person is a citizen of a gazetted country within the meaning of Part 560 as it read immediately before 1 July 2001;

   (ii)      the primary person is undertaking a course of study paid for, wholly or in part, by:

   (A)      the Commonwealth or the government of a State or Territory; or

   (B)      the government of a foreign country; or

   (C)      a multilateral agency;

   (iii)      the primary person:

   (A)      will be, or has been, granted a visa in relation to a course of study that is, or to courses of study that are together,of a duration of 12 months or more; or

   (B)      has been lawfully in Australia for 12 months or more; or

   (b)      who satisfies, or has satisfied, the primary criteria in Subdivisions 572.21 and 572.22 and who meets one of the following:

   (i)      the primary person is subject to assessment level 1 or 2;

   (ii)      the primary person is undertaking a course of study paid for, wholly or in part, by:

   (A)      the Commonwealth or the government of a State or Territory; or

   (B)      the government of a foreign country; or

   (C)      a multilateral agency;

   (iii)      the primary person:

   (A)      will be, or has been, granted a visa in relation to a course of study that is, or to courses of study that are together,of a duration of 12 months or more; or

   (B)      has been lawfully in Australia for 12 months or more.

8. The Tribunal notes this requirement is a time of decision requirement, so the Tribunal must consider whether Ms Kongcharoen is a member of the family unit of Mr Srisroemrat at the time of the Tribunal’s decision. In this regard the Tribunal notes that Ms Kongcharoen and Mr Srisroemrat were not married as at the time the visa application was lodged or refused. They married on 15 January 2015, after the applicant lodged a review application with the Tribunal. Therefore the Tribunal considered whether Ms Kongcharoen was the spouse of Mr Srisroemrat as at the time of decision.

9. The Tribunal considered the evidence in relation to whether the applicant is a member of the family unit of Mr Srisroemrat, in particular whether the applicant is the partner of Mr Srisroemrat. In making this assessment the Tribunal had regard to the definition of member of the family unit in s.5(1) of the Act and regulation 1.12. Regulation 1.12 provides that a person is a member of the family unit of another person if the person is the spouse of the family head. Under Migration law, 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: s.5F(2)(a). Next, when determining if the applicant and Mr Srisroemrat are in a married relationship, the Tribunal must also consider whether they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether their relationship is genuine and continuing, and whether they live together or do not live separately and apart on a permanent basis as required by s.5F(2)(b)-(d). In forming an opinion whether the applicant and Mr Srisroemrat are in a married relationship the Tribunal must have regard 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).

10. The applicant and Mr Srisroemrat married in Australia in January 2015. The Tribunal finds that at the time of this decision, the applicant and Mr Srisroemrat were married to each other under a marriage that is valid for the purposes of the Act. They therefore satisfy the requirements of s.5F(2)(a) for a married relationship.

11. The Tribunal went on to consider if they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether their relationship is genuine and continuing, and whether they live together or do not live separately and apart on a permanent basis as required by s.5F(2)(b)-(d).

12. The Tribunal notes that the applicant and Mr Srisroemrat gave consistent evidence on a range of matters, including the history of the relationship, their accommodation in Australia, their financial resources and arrangements, their household responsibilities, their plans for the future and reasons for getting married. In addition, the Tribunal had the benefit of a range of documentary materials including photographs, marriage certificate, bank statements and tenancy documents. The Tribunal accepted the applicant and Mr Srisroemrat are credible and reliable witnesses and accepted their evidence regarding the nature of their relationship.

13. The Tribunal made the following findings based on the oral and documentary evidence before the Tribunal.

14. The applicant and Mr Srisroemrat met in approximately February 2012 when they both lived in their home country, Thailand. The applicant worked close to the home of Mr Srisroemrat and his workplace. They met when the applicant went to Mr Srisroemrat’s family shop to purchase items. At the time they exchanged telephone numbers and subsequently went out to dinner together every day, and learnt about each other. Not long after they commenced a relationship as boyfriend and girlfriend on about 4 February 2012.  The relationship as boyfriend and girlfriend continued for the following two years. They would frequently visit each other’s houses and met each other’s families. Whilst in Thailand they never lived together, although visited each other’s home frequently. At that time Mr Srisroemrat lived with his mother, father, aunt and uncle and the applicant resided with her father and stepmother.

15. On 5 March 2014 the applicant and Mr Srisroemrat left Thailand together and travelled to Australia. On 6 March 2014 they arrived in Australia. Mr Srisroemrat and the applicant each held a student (subclass 570) visa for the purposes of studying English in Australia. Both student visas were granted until 22 September 2014. On 22 September 2014 Mr Srisroemrat lodged a student visa application for the purposes of studying a Diploma in Business and an Advanced Diploma in Business in Australia and the applicant was named as his de facto.

16. After arriving in Australia, Mr Srisroemrat and the applicant commenced residing with a friend for about two weeks. They then established a joint household by renting a property in suburban Adelaide. Since then they have stayed in two other premises together and now reside together in Plympton. The applicant is provided the tenancy agreement in relation to the latest rental accommodation which they have been living in since August 2015. They also provided other documentation showing a common address since May 2014. They share the responsibility for the household tasks. The applicant is responsible for most of the cooking, dish washing, sweeping, mopping, food shopping and laundry. Mr Srisroemrat is responsible for cleaning the bathroom and they both clean the remainder of the household. Mr Srisroemrat also assists with the laundry and does some shopping.

17. The applicant and Mr Srisroemrat have pooled their resources to meet the costs of their daily living expenses and to save money for the future. They have three joint bank accounts. They opened these three accounts on the advice of the bank officer not long after they arrived in Australia. Initially they opened single accounts as they were unaware of the option of joint accounts, but on 23 April 2014 opened three joint accounts. The account which has a high interest on savings is where they deposit and accumulate their joint savings. The other two bank accounts are rarely used.

18. The applicant and Mr Srisroemrat are both employed. The applicant earns in the vicinity of $500 to $700 per week and Mr Srisroemrat earns in the vicinity of $300-$350 per week. The applicant is paid in cash and her money is used to pay for food expenses and to assist with utility and rental costs. The applicant will give cash to Mr Srisroemrat to pay all the rental and utility expenses. The remainder of the applicant’s income that is not used to pay for daily expenses is deposited into the joint savings account. Mr Srisroemrat’s salary is paid into his own single bank account. Mr Srisroemrat has the responsibility for paying all the bills, and he uses the money paid into his account plus cash provided by the applicant to meet the expenses. The applicant has the primary responsibility for meeting all the food expenses, although Mr Srisroemrat will pay for the food on occasion. They currently have savings for the purposes of assisting them when they return to Thailand.

19. The applicant and Mr Srisroemrat initially travelled to Australia for the purposes of undertaking study and then returning to Thailand and marrying. After arriving in Australia and completing the English course, Mr Srisroemrat decided that he wished to continue studies in Australia and enrolled in two business related courses. The purposes of this study was to gather business knowledge and understanding to then return to Thailand to assist in the family’s food business. They plan to remain in Australia until Mr Srisroemrat completes his business studies and then they will return to Thailand. They intend on returning to Thailand to build up Mr Srisroemrat’s family’s business. They have not discussed having children or the number of children.

20. The applicant and Mr Srisroemrat married in January 2015 after the visa application by the applicant was refused. They both gave evidence that they married because they were advised this would assist in the migration application by the applicant, so that she could remain in Australia with Mr Srisroemrat. The Tribunal notes both witnesses were frank in this regard about the timing of their marriage and indicated they had always intended to marry, although their initial plan had been to return after they completed their studies to Thailand to marry. The applicant has provided photographs of the marriage ceremony in Adelaide, and they were accompanied by friends and a relative from Melbourne. The applicant stated that on their return to Thailand they intend to have a traditional wedding ceremony to celebrate their marriage with family and friends.

21. The applicant has provided numerous photographs of the applicant and Mr Srisroemrat together as a couple both in Australia and in Thailand. The Tribunal accepts this photographic evidence demonstrates a longer term relationship since 2012 until the time of the hearing and that the couple has socialised as a couple in that period. In addition they both gave consistent evidence in relation to how they socialised on Christmas Day 2015, New Year’s Eve and on the weekend preceding the Tribunal hearing. The Tribunal accepts that the applicant and Mr Srisroemrat have socialised and represented to others they are a couple.

22. The Tribunal accepts the oral evidence given that the families of the applicant and Mr Srisroemrat are aware of their living together since March 2014 and their marriage in January 2015. The Tribunal notes the applicant and Mr Srisroemrat gave consistent evidence regarding the make-up of their families and the family’s knowledge of their relationship.

23. On the basis of the findings above, and after weighing the findings regarding the nature of the commitment, the nature of the household, the financial aspects and social aspects of the relationship as at the time of decision, the Tribunal is satisfied that at the time of decision the applicant and Mr Srisroemrat have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. They therefore meet the requirements of s.5F(2)(b) and s.5F(2)(c). In addition, the Tribunal is satisfied that at the time of decision the parties lived together or did not live separately and apart on a permanent basis. Accordingly, the requirements of s.5F(2)(d) are met.

24. The Tribunal is therefore satisfied that Ms Kongcharoen is the spouse of Mr Srisroemrat, and is a member of the family unit of Mr Srisroemrat for the purposes of r.1.12 and cl.572.322.

25. The Tribunal notes that Mr Srisroemrat was granted the student (subclass 572) visa on 10 November 2014 with effect until 8 March 2017 and he has been lawfully in Australia for more than 12 months. The Tribunal also finds that Thailand is an Assessment level 2 country for the purposes of subclass 572 (see IMMI 14/014). 

26. Therefore the Tribunal finds that cl.572.322 is met.

27. The appropriate course is to remit the matter for reconsideration by the Minister of the remaining criteria.

    Decision

28. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 572 visa:

    ·cl.572.322 of Schedule 2 to the Regulations.

    Miriam Holmes
    Senior Member