BAN (Migration)

[2018] AATA 589

BAN (Migration) [2018] AATA 589 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sreynich Ban

CASE NUMBER:  1621916

DIBP REFERENCE(S):  CLF2013/84667

MEMBER:Helena Claringbold

DATE:6 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(2)(c) of Schedule 2 to the Regulations; and

·cl.801.221 of Schedule 2 to the Regulations.

STATEMENT MADE ON 06 MARCH 2018 AT 2:49PM

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 801 (Partner) – Valid marriage – Child of the relationship – Support their child – Live with sponsor’s family in Australia – Mutual commitment to the relationship

LEGISLATION
Migration Act 1958, s 5F
Migration Regulations 1994 Schedule 2 cl 801.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 18 April 2013, Ms Sreynich Ban, the applicant, applied for a Partner (Residence) (Class BS) visa.  The application was made on the basis of her spousal relationship with Mr Bun Thet Mam, the sponsor.

2. On 8 December 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The applicant did not meet cl.801.221(2) and cl.801.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) of the Migration Act 1958 (the Regulations). The delegate was not satisfied that the applicant is the spouse of the sponsor.  This is a review of the delegate’s decision.

3. On 22 January 2018, the applicant appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Mr Mam and Mr Bunthoeun Mam, his brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer (Kampuchean/Cambodian) and English languages. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Departmental case file, and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Migration Act 1958 (the Act).

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in 1991 in Kampong Speu, Cambodia. Her parents and three siblings live in Cambodia.

8. The sponsor was born in 1984 in Kao El Dang, Thailand. His parents and a sibling live in Cambodia.  He has another sibling living in Australia.  In 2004, he was granted Australian citizenship.

9. On 2 February 2012, the parties met at Phnom Penh Airport.  On 18, February 2012, the parties committed to a shared life together to the exclusion of all others.  On 12 January 2013, the parties married.

   CLAIMS AND FINDINGS

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided evidence of his marriage to the sponsor. 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 parties in a spousal relationship?

11. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

12. ‘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).

13. 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 visa applicant’s and sponsor’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.

14. On these aspects, the Tribunal has considered all the evidence before it and is satisfied the facts of this case are as follows.

    FINDINGS

15. The parties provided inconsistent information about different aspects of their relationship including land owned in Cambodia, money the sponsor owes and the times they lived at different addresses.  In addition, vague information was provided about the sponsor’s employment.  Without any action taken by the Tribunal, the applicant responded to these matters during the Tribunal hearing. The Tribunal invited the parties to provide DNA evidence about their biological relationship with their daughter.  It also provided the parties additional time to provide information about their relationship.

16. The parties do not have any joint ownership of assets or joint liabilities. The parties do not have any legal obligations owed to the other party. The parties’ income is derived from the sponsor’s salary which is deposited into the parties’ joint bank account. From this account the parties manage financial matters including payment for rent, utilities, groceries and day-to-day expenses.  The Tribunal accepts that the parties share financial day-to-day matters.

17. The applicant told the Tribunal that their daughter was born in 2017 and the parties care for and support their daughter together. The parties live in an apartment owned by the sponsor’s brother and sister-in-law.  They share the accommodation with the sponsor’s father.  At other times the sponsor’s brother will stay.  They told the Tribunal that when the sponsor is not working interstate the parties share housework. The parties are jointly responsible for the care and support of their daughter and that they share housework.

18. The information before the Tribunal is that the parties’ social activities involve visiting family and attending family functions. The parties travelled to Cambodia together on two occasions.  During these times they lived with the applicant’s mother and aunt and went out with them.   Mr Bunthoeun Mam told the Tribunal that when the applicant first arrived in Australia the parties lived with him. He stated that the parties have been in a genuine relationship since that time.  

19. On 24 January 2018, the Tribunal invited the parties to provide DNA evidence about their parental relationship with their daughter Jessica.  On 2 March 2018, the DNA evidence informed the Tribunal that the applicant is the genetic mother of Jessica with DNA results equating to a relative chance of maternity of 99.99999999996 per cent and the sponsor is the genetic father of Jessica with DNA result equating to a relative chance of paternity of 99.99999999997 per cent.

20. The parties have lived together for more than five years.  During this time the parties supported each other through times of separation, most particularly when the sponsor worked remotely and could only returned home once a month.  In June 2017, the parties welcomed their daughter Jessica into their family.  The parties want to improve their circumstances and are saving to purchase a home. They would also like to have another child. The Tribunal accepts that the parties provide companionship and emotional support for each other and see their relationship as long-term.

21. The Tribunal carefully considered a number of aspects of the sponsor’s oral evidence which concerned the Tribunal because it was inconsistent with the applicant’s oral evidence, or caused the Tribunal to question (more broadly) the reliability of the applicant’s oral evidence. Specifically, on one occasion the sponsor provided different information about the parties’ financial matters including land in Cambodia and debt.  Other inconsistent information provided by the parties related to money owed by the sponsor and when they lived at different addresses and other information appeared vague. This contrasted to other evidence provided by the parties about their travel together, the applicant’s pregnancy and events leading up to and at the birth of their daughter, which was succinct, spontaneous and therefore reliable.  Although the Tribunal has concerns about the inconsistencies, it has weighted them against the other evidence of the case and has determined that the inconsistencies are not fatal to the application under review.

22. Overall, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. The applicant therefore meets the requirements of s.5F of the Act. Given these findings, the Tribunal is satisfied that the parties are in a spousal relationship.

23. The Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant meets cl.801.221(2)(c).

24. The Tribunal is satisfied that at the time of this decision the parties are in a spousal relationship. Therefore the applicant meets cl.801.221(2)(c) to the Regulations.

25. Given these findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 801 visa.

    DECISION

26. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221(2)(c) of Schedule 2 to the Regulations; and

    ·Cl.801.221 of Schedule 2 to the Regulations

    Helena Claringbold
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).

    (3)The matters for subregulation (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 subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).