1509911 (Migration)

[2016] AATA 4143

1509911 (Migration) [2016] AATA 4143 (21 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kitiyaporn Catchama

CASE NUMBER:  1509911

DIBP REFERENCE(S):  OSF2012/007476

MEMBER:Kira Raif

DATE:21 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

·cl.100.221 of Schedule 2 to the Regulations

Statement made on 21 July 2016 at 10:04am

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 7 July 2015 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 July 2015 on the basis of her relationship with the sponsor. The applicant was granted the temporary Partner visa in August 2012, however, her application for the permanent visa was refused because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 21 July 2016  to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, amongst other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term.

6. ‘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 parties’ household and their commitment to each other as set out in r.1.15A(3).

   Are the parties validly married?

7. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided with her application evidence that she registered marriage with the sponsor in April 2012. There is nothing to indicate that the marriage is not valid. The Tribunal is satisfied that 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?

8. The applicant provided minimal documentary evidence with the primary application concerning various aspects of the relationship and little more documentary evidence has been presented to the Tribunal. The presented documentary evidence alone is insufficient to satisfy the Tribunal that the parties’ relationship is genuine and continuing.

9. The Tribunal questioned the applicant about the financial arrangements. The applicant said she has a bank account which is hardly being used and she could not state how much money she has in that account. She did not know how many accounts the sponsor had, with which bank these accounts were opened or where the sponsor’s salary payments were made. The applicant could not outline the arrangements for the payment of the rent. The Tribunal has formed the view that the applicant has very little knowledge about the sponsor’s financial circumstances.

10. The applicant’s evidence to the Tribunal is that the sponsor gave her regular amounts to help pay off the house in Thailand and the sponsor also gives her cash for daily expenses. The Tribunal accepts that the sponsor provides financial support for daily expenses, particularly since the applicant stopped working in late 2015, however the Tribunal is not satisfied that the couple share their finances. There is little evidence that the parties have joint ownership of assets (although the Tribunal acknowledges the evidence that the sponsor helped pay for the house in Thailand). There is little evidence of joint liabilities or obligations owed to other party. The Tribunal is not satisfied they share household expenses.

11. The parties provided a number of statements from third parties and the Tribunal accepts that friends and relatives are aware of the relationship and believe it to be genuine. The Tribunal accepts that the parties represent themselves to others as being married and that friends and acquaintances believe it to be genuine. The Tribunal accepts that they undertake joint social activities.

12. There is little documentary evidence about the couple’s cohabitation.  The couple gave consistent evidence about their living arrangements and the Tribunal is satisfied they live together. The Tribunal places significant weight on the fact that the couple have responsibilities for the upbringing of their child and also for the sponsor’s two children from the previous marriage who live with them.

13. The couple have now been married for a period exceeding four years. The Tribunal accepts that they live together and that they rely on each other for comfort and emotional support. The Tribunal acknowledges that in the past the sponsor advised the delegate of the breakup of the relationship, which resulted in the refusal of this application, but the Tribunal accepts the couple’s evidence that they resolved their differences. They now have a child, which is a strong indication, the Tribunal‘s view, of the couple’s mutual commitment to the relationship and the fact that they view it as a long term one. They also have joint parental responsibility for the care of the sponsor’s two children from the previous relationship.

14. Overall, the Tribunal acknowledges that minimal documentary evidence has been provided with the application and on that evidence alone it would have been difficult to find in favour of the applicant but the Tribunal has also had the benefit of the couple’s oral evidence. The Tribunal places significant weight on the fact that the couple have a child. Having considered the entirely of the circumstances, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to shared life to the exclusion of others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they live together. Given these findings the Tribunal is satisfied that at the time of this decision the parties are in a spousal relationship. Therefore the applicant meets cl.100.221.

    Conclusion

15. 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 100 visa.

    DECISION

16. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

    ·cl.100.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member