BUAKLEE (Migration)

BUAKLEE (Migration) [2024] AATA 219 (9 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Suphunsa BUAKLEE
REPRESENTATIVE:  Ms Julie Warisara Tanomvongtai (MARN: 0534449)
CASE NUMBER:  1835509
HOME AFFAIRS REFERENCE(S):          CLF2014/79218 CLF2018/171872
MEMBER:Mila Foster
DATE:9 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 09 February 2024 at 1:11pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing partner relationship – registered relationship – joint overseas travel with the sponsor’s ex-wife – unclear evidence about shared living expenses – invention to start a family – lengthy shared accommodation with other people – address on incoming passenger cards – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 801.221; r 1.09
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 November 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 May 2014 on the basis of her de facto relationship with Tzu-chiao Kuan, her sponsor for the visa. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801.221 because the delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor.
The applicant appeared before the Tribunal on 22 September 2023 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.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner 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 Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen and was identified in the related Subclass 820 visa application.
In addition to the oral evidence given at the hearing the Tribunal has before it two Department of Home Affairs files relating to the applicant’s visa application,[1] as well as documentary and photographic evidence the applicant presented on review before and after the hearing. The Tribunal has had regard to all of the evidence before it although not all the evidence is listed or referred to in this decision record. In addition, the applicant’s representative made written submissions on her behalf.
[1] Department file numbers CLF2014/79218 (DF1) and CLF2018/171872.
The Department files includes a Partner visa application form completed by the applicant and a sponsorship form completed by the sponsor. Evidence of the parties’ relationship includes but is not limited to statutory declarations made by the applicant, the sponsor, and friends of the applicant, financial records such as bank statements and superannuation statements, letters from doctors, leases, and travel documents. The applicant had requested that the Tribunal take oral evidence from two witnesses at the hearing however the Tribunal decided not to do so as it had been provided with recent statutory declarations from both persons before the hearing.
On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant and that the sponsor is an Australian citizen by grant.[2] The issue in the present case is whether the applicant is the de facto partner of the sponsor.
[2] Based on the Australian passport issued to the sponsor and Australian citizenship certificate: DF1, ff.62, 63.
Background
Based on the applicant’s birth certificate and Thai passport she is 39 years old, was born in Thailand and is a Thai citizen.
It is claimed that the sponsor was previously known as Apichai Honganan; that he is 42 years old, was born in Taiwan, and acquired permanent residence in Australia under the Partner visa program.[3]
[3] Visa application form.
The applicant and sponsor (the parties) claim they met in Australia on 1 June 2013, entered into a de facto relationship with each other on 1 October 2013[4] and have lived together since then.
[4] Visa application form and sponsorship form.
It is claimed that both the applicant and sponsor were previously married. The sponsor married Supornwan Chaichana in NSW on 17 May 2007[5] and they divorced on 19 October 2012.[6] The sponsor claims there were no children of that relationship. The applicant married Pattarapruet Chaiyadech in NSW on 3 May 2010[7] and they divorced on 21 March 2014.[8] The applicant says there were no children of that relationship.
[5] DF1, f.60.
[6] DF1, ff.58-59.
[7] DF1, f.41.
[8] DF1, f.39-40.
The parties registered their relationship with the NSW Registry of Births Deaths and Marriages on 20 May 2014.[9]
[9] DF1, f.66.
On 29 January 2015 the applicant was granted a Partner (Temporary) (Class UK) (Subclass 820) visa on the basis that she was in a de facto relationship with the sponsor.
On 6 May 2016 the applicant submitted documents to the Department in support of her Subclass 801 visa application.
On 21 June 2018 she was interviewed by telephone by an officer of the Department in relation to her visa application.
On 28 June 2018 the Department invited the applicant to comment upon adverse information which included the following:
a.Department movements records and boarding passes indicated that the parties travelled overseas with the sponsor’s ex-wife three times since the parties claimed to have begun their de facto relationship even though the applicant stated in her telephone interview that she did not believe the sponsor saw his ex-wife and the parties did not socialise with the sponsor’s ex-wife;
b.upon returning to Australia on 6 April 2015 the sponsor declared he was living at an address in Campsie and gave his ex-wife’s sister as his emergency contact; and
c.social media, Department records and photographs submitted by the applicant showed that the parties continued to socialise with the sponsor’s ex-wife and his ex-wife’s sister.
The applicant responded to the Department’s invitation on 25 July 2018.
After the hearing the Tribunal reviewed all the evidence and decided to invite the applicant to provide additional supporting information and evidence. The invitation was sent on 22 November 2023 and the applicant submitted further evidence on 14 December 2023.
Non-disclosure certificate
The Department files contain a certificate and notification signed on 11 December 2018 by a delegate of the Minister and Secretary of the Department. The certificate and notification notified the Tribunal that s 376 of the Act applied to documents/information on the Department files and that disclosure of the material would be contrary to the public interest because they disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would likely prejudice the effectiveness of those methods. The certificate and notification also noted that the material contained information about third parties.
A copy of the certificate and notification was provided to the applicant on 9 January 2019 in response to a request for access to documents. The applicant was invited to make submissions about the validity of the certificate and notification in the Tribunal’s invitation of 22 November 2023. The Tribunal has considered the undated submission from the representative on this matter which it received on 14 December 2023.
Information about third parties is not of itself a basis for public interest immunity. However, public interest immunity can operate to prevent disclosure of methods referred to in the certificate and notification hence the Tribunal finds that the certificate and notification is valid. Having considered the documents and information to which the certificate and notification relates the Tribunal finds that insofar as any of the information is relevant to the applicant’s claims, the information has already been disclosed to the applicant in the Department’s invitation of 28 June 2018 and in the delegate’s decision record.
Are the parties in a de facto relationship?
The term ‘de facto partner’ is defined in s 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).
The parties claim they are not related to each other by family and there is no evidence before the Tribunal to suggest that they are so related. The Tribunal is satisfied on the evidence before it that the parties are not related to each other by family.
In forming an opinion as to whether a couple are in a de facto relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the parties’ household and their commitment to each other as set out in reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Financial aspects of the relationship The parties do not have joint ownership of any real estate or other major assets. They do not have joint liabilities nor owe any legal obligation in respect of the other.
In statutory declarations made on 2 May 2016 the applicant and sponsor stated that they had a joint bank account which they used as their ‘saving and emergency fund.’ They claimed that the sponsor gave all his pay to the applicant which the applicant put into the joint account. They claimed the applicant was responsible for paying the parties’ household bills such as rent, groceries, and utilities. The sponsor stated that the applicant paid his personal expenses, such as his Opal Card and cigarettes, and gave him $35 ‘pocket money’ each week. In a statutory declaration made on 6 April 2023 the applicant stated that she worked as a barista and cleaner, and that her wage for her casual cleaning work was deposited directly into the joint account. She stated that the sponsor worked as a chef and his wage went into his personal bank account. She said the sponsor gave her cash or his bank card to withdraw cash; she said he trusted her and let her take control of their income and expenses. The applicant stated that the parties shared their living expenses, and they used the joint account to pay their weekly rent of $320, electricity of about $100 per month, transportation, food, groceries, entertainment and other household items.
A St George Account Confirmation Receipt submitted on review indicates that the parties opened a joint bank account on 17 October 2013. A few bank statements for the joint account and an individual bank account held by the applicant have been presented to the Department and Tribunal but no statements for the sponsor’s individual bank account. The statements for the joint account show very little activity on the account in 2014 and 2016 and more activity in the last year or so. Given the parties have had the account for 10 years the limited bank statements do not indicate to the Tribunal that the parties have pooled their finances during their relationship as they claim particularly in the absence of statements for the sponsor’s individual account which would indicate that his wages were withdrawn from his account and deposited into the joint account as claimed.
The Tribunal sought to confirm, clarify and obtain further information from the parties at the hearing about the financial aspects of their relationship. The applicant had great difficulty providing clear information about the parties’ financial arrangements such as whether all or some of the sponsor’s wage went into their joint account, how his wages were deposited from his personal account into the joint account, and how and when the arrangements relating to the sponsor’s financial contribution to the relationship and joint account changed (as it appeared the parties claim is that initially the sponsor gave all his wages to the applicant to manage but this changed at some point when the sponsor began giving the applicant between $300 and $500 towards their expenses). The Tribunal found the applicant’s evidence unforthcoming, unclear, and contradictory. If the parties were in a genuine relationship for over 10 years during which the applicant was responsible for managing the parties’ financial affairs as claimed, then the Tribunal expects the applicant would have been able to give more direct and clear evidence about how the parties pooled their finances over the course of their relationship.
Further, the Tribunal has concerns regarding other aspects of the parties’ evidence about the financial aspects of their relationship. The Tribunal questioned the parties about why the sponsor’s wages were not deposited directly into the joint account by his employer when it appeared to be claimed that, at least initially, all of his wages were withdrawn from his account and deposited into the joint account and used by the applicant to manage their finances. The parties suggested that it was because the applicant had a gambling problem. No gambling problem was mentioned in the parties’ statutory declarations prior to the hearing and in any event the Tribunal does not consider this a credible explanation given that the sponsor could have accessed the funds in the joint account by virtue of being one of the account holders.
Noting that the parties claimed that their joint account was a ‘saving and emergency fund’ the Tribunal asked the applicant at the hearing whether the parties had saved for anything or used the funds for any emergency. The applicant stated that they had not but when there was a good sum of money they withdrew funds to buy gold. There is no supporting documentary evidence to indicate that the parties purchased gold. The Tribunal noted that the parties stated in the statutory declarations they made on 2 May 2016 that they hoped to save to buy a house in Thailand and asked the applicant how much they had saved towards that. The applicant’s response was not clear and direct. She indicated that they had changed their plan and decided to buy gold but she also seemed to indicate that the parties would look for a house in Thailand. Her explanation as to why the parties decided to buy gold rather than use their joint account to save money was unclear nor did she indicate how much they had saved or how much gold they had bought.
The parties claimed on review that they had made each other beneficiaries of their superannuation accounts and submitted documents relating to their accounts. Two statements show that the sponsor was the beneficiary of the applicant’s account as at 30 June 2021 and 30 June 2022, and what seems to be a screenshot or photograph of part of a statement indicates the applicant was the beneficiary of the sponsor’s superannuation account. Asked at the hearing why it seemed the parties had only recently made each other the beneficiaries of their superannuation accounts the applicant indicated that they decided to do so due to their age and because the sponsor has diabetes so they did not know who would predecease the other. However, neither party is very old and the applicant provided a letter from a doctor dated 18 July 2018 which states that the sponsor has diabetes thus the parties were aware well before 2021 of the sponsor’s condition. The Tribunal therefore does not find the applicant’s explanation credible.
Further, the statement for the sponsor’s superannuation account as at 30 June 2020 noted that the beneficiary of his account was Mrs Supornwan – the first name of his ex-wife. In a post-hearing statutory declaration,[10] the applicant stated that it was an oversight on the sponsor’s part that he failed to change his ex-wife as his beneficiary. The applicant said this was partly because the sponsor was not good with paperwork and also because his fund was low at the time. The Tribunal finds it hard to believe that for 8 years after his divorce and 7 years into his relationship with the applicant the sponsor would overlook removing his ex-wife as the beneficiary of his superannuation. Further, as at 30 June 2020 the balance of the sponsor’s account was $11,669 which was much higher than the balance of the applicant’s account in 2021 of $1974 when it seems she made the sponsor her beneficiary. That the beneficiary of the sponsor’s superannuation remained his ex-wife for almost 7 years into his claimed relationship with the applicant is not reflective of a genuine relationship between the parties.
[10] Made on 4 December 2023.
The parties claim to have been in a relationship for more than 10 years however the Tribunal does not consider the financial aspects of their relationship to be indicative of a genuine and continuing relationship. Further, the issues with the parties’ evidence about the financial aspects of their relationship also raises doubts about the truthfulness of the parties’ claims about their relationship and their relationship generally.
Nature of the household The parties have not had children and do not have joint responsibility for the care and support of children.
However, according to statutory declarations the parties made on 29 May 2014 the sponsor proposed to the applicant in October 2013 and said it was the right time to marry and ‘build a family together’. Three years later the applicant stated in her statutory declaration of 2 May 2016 that she wished to ‘build a happy family’ with the sponsor. These statements give the impression that the parties planned to have children together. However, in the statutory declaration she made on 6 April 2023 the applicant stated that the parties had agreed not to have children as it did not suit their personal preference and lifestyle. At the hearing the Tribunal sought to clarify whether the parties had initially planned to have children together. The applicant told the Tribunal that having children had always been the plan and the parties had tried but her periods were irregular and the sponsor had diabetes. She added that they had consulted a doctor (about becoming pregnant). Questioned about the statement in her most recent statutory declaration which indicated that the parties had chosen not have children rather than that they could not have them, the applicant said they wanted children but currently could not have them as they had many problems. This response did not address the inconsistency in the evidence about whether the parties had wanted to have children but were not able to or had decided they did not want to have children.
After the hearing the Tribunal invited the applicant to provide a letter from her doctor confirming that she had sought medical advice about becoming pregnant as she had indicated at the hearing. In a statutory declaration made on 4 December 2023 the applicant stated that the parties had planned to have children between 2018 and 2020 and she visited a medical clinic to prepare for a future pregnancy. She said the GP advised her to have a blood test and immunisations. She submitted a letter dated 27 November 2023 from a GP which certified that the applicant had visited the clinic from 2018 and 2020, had a blood test for a general health check-up and a number of vaccines in 2018. The applicant said the letter did not indicate she had sought advice about getting pregnant as her consultation was mainly about preparing her general health for future pregnancy. The Tribunal does not find this credible. If the parties wanted to have children together, were preparing to have a child, had specific concerns about becoming pregnant due to the applicant’s irregular menstruation and the sponsor’s diabetes, the applicant had difficulty becoming pregnant, and the applicant had seen a doctor for the purpose of becoming pregnant then the Tribunal expects that over the course of 2 years the applicant would have gone beyond merely having a blood test and vaccinations and would have discussed with the GP her specific concerns and the fact she was not able to conceive. Further, the parties 2014 and 2016 statutory declarations indicate that the parties had planned to have children as early as 2013 and still wanted to have children in 2016, well before 2018. The Tribunal has concluded the parties never intended to have children together and this claim was invented to indicate that the parties were in a genuine relationship. This invention raises doubts about the accuracy of the other claims and evidence the applicant has presented about her relationship with the sponsor.

The parties claim they have lived together at various addresses since October 2013 and shared housework. In the statutory declaration the applicant made on 6 April 2023 the applicant stated that the parties first lived together in Ashfield (NSW) when she moved into the sponsor’s share accommodation, in April 2016 they moved to an address in Woollahra (NSW) and lived there until they moved to an address in Leichhardt (NSW) in January 2020 where they have lived since. At the hearing the applicant initially confirmed that this information was correct but on further questioning stated that the parties had lived at the Woollahra address since 2014 or 2015 but signed a joint lease there in April 2016.
The applicant has presented correspondence addressed to the applicant and the sponsor, documents such as a joint lease[11] and a letter from a real estate agent[12] which indicate that the parties have lived at the claimed addresses in Ashfield, Woollahra and Leichhardt at the times claimed. According to the evidence, including oral evidence given at hearing and documentary evidence such as statutory declarations from room-mates,[13] the accommodation the parties have lived in during their relationship has been shared accommodation – accommodation they shared with others. Thus, during the 10 years of their claimed relationship the parties have not established their own separate household. While a genuine couple may well live in shared accommodation with others, that the parties have done so for a long period of 10 years, combined with the other concerns about aspects of their relationship and their evidence, this raises doubts about whether they have lived together at those addresses as a genuine couple.
[11] Residential Tenancy Agreement made by the parties on 11 April 2016 as joint tenants of the Woollahra property.
[12] Letter from Chris Vallas of Allan Dale Real Estate dated 4 April 2023.
[13] Statutory declaration made by former roommate, Waree Jensomboo on 5 May 2016, statutory declaration made by current roommate, Jilayu Phuengsuntorn on 8 September 2023.
As noted in the Department’s invitation of 28 June 2018 and the delegate’s decision record, when the sponsor returned to Australia from an overseas trip on 6 April 2016, he declared an address in Campsie as his residential address. The sponsor stated in a statutory declaration he made on 25 July 2018[14] that he put his ex-wife’s Campsie address (on the passenger card) instead of his Woollahra address because of the effect of his long-term diabetes. He said he felt dizzy and unbalanced and was unable to concentrate. He said his mind went blank and he could not spell Woollahra, so he put his ex-wife’s address since Campsie was easier to spell than Woollahra. In support of this explanation a letter from a medical clinic dated 13 July 2018 was submitted which stated that the sponsor had diabetes, was taking medication, was doing well and was fit for his job as a chef. At the hearing the sponsor added that he had failed to take his medication and did not have anything with his address on it because when he travelled overseas he only took his passport. He said he did not think to ask the doctor to indicate in the letter that his diabetes or a failure to take his medication could lead to him to be unable to spell Woollahra. The applicant told the Tribunal she had asked the sponsor why he had not noted his Ashfield address and he told her he could not recall how to spell the Ashfield address either.
[14] Submitted to the Department by the applicant in response to the Department’s invitation of 28 June 2018.
The Tribunal does not accept the above explanations. The medical certificate confirms that the sponsor has diabetes but does not indicate that he had or could experience dizziness or other effects as a result of the diabetes such that he could be unable to spell his own address but could recall and spell the address of his ex-wife. In the absence of more specific supporting medical evidence the Tribunal does not accept that the applicant could not recall how to spell the address where he was living with his claimed current partner or the previous address where he had lived with his claimed partner but could recall and spell his ex-wife’s full address from whom he had been divorced for well over 3 years and hence had presumably not lived with for several years. That the sponsor recorded his ex-wife’s address and not the address he shared with his claimed partner raises doubts about whether he lived with the applicant at the Woollahra or Ashfield addresses as a genuine couple.
While the Tribunal accepts that the parties have lived at the same address and hence shared housework, the evidence does not satisfy the Tribunal that they established a household together where they lived together as a genuine couple.
Social aspects of the relationship It is claimed that the parties represent themselves to friends, family and the Australian authorities as being a couple.
Copies of the parties’ tax returns have been presented indicating that they declared each other as their partners to the Australian Taxation Office. The parties registered their relationship with the NSW Registry of Birth Deaths and Marriages on 20 May 2014. While this indicates that the parties have presented themselves as partners to authorities in Australia the Tribunal has given this limited weight as these are merely declarations made by the parties.
Statutory declarations from friends and acquaintances of the applicant and roommates of the parties who said they believed the parties were in a genuine relationship have been presented.[15] The Tribunal has given these little weight in light of significant issues with the evidence the parties themselves have given about their relationship.
[15] Statutory declaration made by Sontichai Kongpan on 27 May 2014 who claimed to be a friend of the applicant, statutory declaration made by Alongkot Sribunga on 29 May 2014 who claimed to be a former work colleague of applicant, statutory declaration made by Thidaporn Sittimongkol on 5 May 2016 who claimed to be a friend and work colleague of the applicant, statutory declaration made by Waree Jensomboo on 5 May 2016 who claimed to be a former roommate of the parties and the applicant’s best friend, statutory declaration made by Jilayu Phuengsuntorn on 8 September 2023 who claims to have met the applicant in 2015 and has shared the same accommodation with the parties since 2020, and statutory declaration made by Napapat Saowanwongsa on 8 September 2023 who claims to have known the applicant since she arrived in Australia, to have worked with the applicant and that the applicant is like family.
The parties claim they undertake social activities together and with friends. They claim they travelled together to Thailand in March 2014, March 2015, May 2016, December 2016, December 2017, May 2022, and August 2023. It is claimed that the sponsor has met the applicant’s family including her parents in Thailand. There are many photographs of the parties together and with other people including the applicant’s parents in Thailand over many years and in many settings. However, there are no statements from the applicant’s family (the Tribunal notes that it is claimed the sponsor does not have a relationship with his parents and sibling) nor statements specifically from friends or acquaintances of the sponsor. Further, the evidence indicates that all or most of the trips to Thailand were made with other friends and that the parties have not always travelled to and from Thailand at the same time. This suggests that the parties’ trips to Thailand are a social activity they undertake with others rather than activity they undertake alone as a couple. Hence, those trips are not a strong indicator of a genuine relationship.
In addition, the applicant has not been truthful about the parties’ social activity in a significant respect. During her interview with the Department the applicant stated that she did not believe the sponsor saw his ex-wife and, while the parties travelled overseas each year with a group of friends, they did not socialise or travel with his ex-wife. However, the Department had information from movement records and boarding passes which indicated that the sponsor had travelled overseas with his ex-wife three times since the parties claimed their relationship began, and social media and photographs provided by the applicant showed the sponsor socialising with his ex-wife. When this was put to the applicant in the Department invitation her representative (at the time) expressed concern that the applicant had not been provided with an interpreter at the interview. Further, in a statutory declaration the applicant made on 24 July 2018 she stated that when she was asked whether the sponsor was seeing his ex-wife she understood this to mean whether he was sleeping with his ex-wife. The applicant also said she was depressed due to the death three days before of an uncle to whom she was very close. She said the sponsor maintained a close relationship with his ex-wife’s family in Thailand and regarded them has his own parents and that due to the close relationship and because it was cheaper to buy airline tickets in groups of 6, the applicant and sponsor as well as the sponsor’s ex-wife and his ex-wife’s partner, the sponsor’s ex-wife’s sister (Best) and her husband (Yo) would usually holiday in Thailand together. The applicant reiterated on review the explanations she had provided in her statutory declaration and stated at the hearing that the parties socialised with the sponsor’s ex-wife in Australia and when they travelled to Thailand together.
In relation to the interpreter issue the Tribunal notes that at the time of the interview the applicant had been living in Australia for about 11 years. Since arriving here she completed an Intensive General English language course on 15 February 2008 for which she was graded B⁺ for speaking, and B for listening writing and reading.[16] She then completed a Diploma in Management on 6 April 2012.[17] The applicant ticked ‘no’ in response to the question on the ‘Information for permanent stage processing form, which she signed on 4 May 2016, asking whether she needed an interpreter if she was called by phone. In an email sent to the Department on 10 April 2018 inquiring about her application, the applicant and sponsor stated that they were happy to provide further information and not to hesitate to contact either of them by email or mobile. This indicates that to the Tribunal that the applicant had the English language skills to understand the basic question she was asked as to whether the parties socialised with the sponsor’s ex-wife. It has not been claimed that the applicant expressed during the interview that she had difficulty understanding what she was being asked or that she requested an interpreter. Thus, the Tribunal does not accept that the applicant was not able to correctly answer that she and the sponsor socialised with his ex-wife due to language difficulties.
[16] DF1, f.42.
[17] DF1, f.44.
In relation to the impact of the death of the applicant’s uncle, the applicant provided a copy of her uncle’s death certificate which indicates that he died 3 days before her interview. The applicant also presented an Intake Report from a clinical psychologist dated 21 July 2018 which stated that the applicant reported experiencing a panic attack at the time of the interview, the third one she had had in her life, and that her mind went blank. The report indicates that the psychologist assessed the applicant as having an acute stress disorder on the basis of one consultation with the applicant on the day the report was written. Thus, the psychologist had not previously treated the applicant and the diagnosis was based on what the applicant had reported to the psychologist on the day of the consultation four weeks after the interview. The Tribunal thus finds that the diagnosis is fundamentally based on what the applicant reported and gives it no weight. Further, there is no mention in the report that the applicant reported being affected by her uncle’s death. The fact the applicant stated that she and the sponsor did not socialise with the sponsor’s ex-wife does not indicate to the Tribunal that her mind went blank instead that she gave completely inconsistent information to what was subsequently claimed - that the parties regularly travelled with and socialised with the sponsor’s ex-wife. The Tribunal thus does not accept that the applicant had a panic attack or was affected by her uncle’s death such that she could not correctly state at the interview that she and the sponsor’s socialised with his ex-wife.
As the Tribunal does not accept the applicant’s explanations for not disclosing at the interview that she and the sponsor socialised with the sponsor’s ex-wife, the Tribunal has concluded that the applicant intentionally sought to conceal and provided false information to the Department about the parties’ contact with the sponsor’s ex-wife. This undermines the applicant’s credibility, the credibility of her claims about the social aspects of the parties’ relationship and the parties’ relationship generally.
Therefore, while there is evidence that the parties have presented themselves as partners and have undertaken social activities together, the Tribunal does not believe the applicant has provided an accurate account of the social aspects of the parties’ relationship and is not satisfied that the social aspects of their relationship is indicative of a genuine relationship.
Nature of persons’ commitment to each other The parties claim that they have been in a relationship and cohabited for a period of more than 10 years. While this is a significant period of time the issue is the nature of the parties’ relationship and specifically whether it is a genuine one.
In his statutory declaration of 2 May 2016, the sponsor stated that the applicant took good care of him, was more than just a partner, she was his best friend. He said she organised everything around the house for him as he worked longer hours and managed their finances and joint saving account. He stated that they were saving for a house in Thailand. The applicant stated in the statutory declaration she made on 6 April 2023 that the parties supported each other in every way they can as a couple – physically, financially and emotionally, and that they drew companionship from each other. She provided some examples of the occasions on which the sponsor comforted her (such as when her visa application was refused) and when she experienced depression in 2018 due to pressure at work. The Tribunal gives little weight to the parties’ assertions about the emotional support and companionship they claim they draw from each other in light of the other evidence about the nature of their commitment to each other and other aspects of their relationship.
After the hearing the Tribunal invited the applicant to provide a selection of phone messages between the parties which indicate they were in a de facto relationship. The Tribunal was presented with a very small number of messages the parties appear to have sent each other. Not all are in English, even though the Tribunal requested translations of messages that were not in English. Of those that were in English, there are few messages of the parties wishing each other happy Valentine’s Day and birthday wishes. The birthday messages seem contrived and there was no indication that the parties celebrated either Valentine’s Day or the sponsor’s birthday together. The Tribunal does not find the limited number nor the nature of the messages a persuasive indicator of a genuine relationship particularly given the length of the parties claimed relationship.
The applicant stated in her statutory declaration of 6 April 2023 that she loved the sponsor and considered their relationship a lifelong one. She said they intended to settle in Australia and save money for their future, buy their own home, possibly start a food business and buy a holiday home in Thailand. However, as noted above there is no supporting documentary evidence to indicate that the parties have saved towards a house in Australia or holiday house in Thailand or accumulated savings despite making claimed that these were their intentions from as early as 2016. The Tribunal thus does not find the parties claims about their future together persuasive or credible.
Overall, the Tribunal is not satisfied that the evidence of the nature of the parties’ commitment indicates that the parties are in a genuine relationship.
Any other circumstances of the relationship The parties stated in the statutory declarations they made on 29 May 2014 that the sponsor proposed to the applicant in October 2013. The applicant also stated that the parties went to Thailand and met her family and had a small party celebration for the engagement. The applicant submitted wedding related cards in support of her visa application. One, a ‘Wedding Shower Wishes’ card, bears the handwritten message ‘May your day be filled with love and happiness’; the other is a postcard posted from Thailand on 10 June 2014 with a handwritten message wishing the parties a ‘long and happy married life’.[18] The applicant also submitted 9 photographs of the parties which have the appearance of professionally taken wedding photographs. [19] In them the sponsor is wearing a suit and the applicant is dressed in what appears to be a wedding-style gown and holding a bouquet of flowers. However, the parties stated at the hearing that they had not married, had never intended to marry (because the applicant’s marriage had not been good), and the sponsor had never proposed. Further, according to the applicant, there was no engagement. Asked about the statements in the statutory declarations, the applicant told the Tribunal that she had organised the de facto registration. The Tribunal noted that the registration of their relationship was different to the parties marrying. The applicant responded that they wanted to live together and profess their love. The applicant stated that instead of an engagement the parties had a meal, a small party to inform her parents that they would live together and were a life couple This does not explain why the parties stated in statutory declarations that the sponsor proposed when he had not nor why the applicant stated that the parties had a party to celebrate their engagement when they had not. Thus, the Tribunal finds that the parties made false statements in statutory declarations that the sponsor proposed to the applicant and that the parties got engaged.
[18] DF1, f.119
[19] DF1, ff.2-5.
Asked about the wedding-style photographs, the applicant and sponsor told the Tribunal that they wanted to have them as a memory. The applicant said she wanted a memory in a beautiful dress. However, the parties could have had professional photographs of themselves taken as a memory of their decision to live together and be a lifelong couple without the appearance of wedding photographs. The applicant could have worn a beautiful dress that did not appear to be a wedding gown. The Tribunal does not find this explanation credible particularly in light of the claim the applicant made at the hearing that she did not want to marry because of her previous marriage.
Asked about the wedding cards, the sponsor had no recollection of them. The applicant seemed to indicate that Thai people did not differentiate between de facto relationships and marriages. However, when questioned about this the applicant’s evidence was flustered and confused. She said she referred to the sponsor as her husband but then said she used the word boyfriend. Asked whether there was a word like ‘partner’ (in Thai) she said that could refer to a gay couple but if she told her friends and family that the sponsor was her husband they would think it was like they were married. While the word ‘partner’ may refer to a gay couple, given the parties are not of the same sex it is not apparent how using the word could have caused any confusion. Asked if her friends and family understood the parties were not legally married, the applicant said if she told a friend they would know she was married (to the sponsor) but it was not a marriage registered in Australia. It is hard to understand what this means and seemed deliberately vague. While the applicant said the sponsor was acknowledged as her husband none of the people who provided statutory declarations about their relationship referred to the sponsor as the applicant’s husband – they all referred to him as her ‘partner’. The Tribunal thus does not find the applicant’s explanation for the cards credible.

In light of the false statements the parties made in their statutory declarations that the sponsor had proposed and the applicant’s false statement that the parties had a party to celebrate their engagement, the Tribunal has concluded that the wedding-style photographs and wedding cards were contrived to give a misleading impression of the nature of their relationship. That the parties would make false statements and present misleading evidence about their relationship raises doubts about the genuineness of their relationship.
Conclusions The oral evidence the applicant gave at the hearing was generally unconvincing, her evidence about basic aspects of the parties’ relationship was often times confused and unclear. The applicant and sponsor have given false and misleading information about significant aspects of their relationship. The Tribunal has given significant weight to these matters. Weighing up these matters against the other evidence and having regard to all the aspects of their relationship including the matters in reg 1.09A(3), the Tribunal is not satisfied that the parties are now or have ever been in a genuine relationship. The Tribunal is thus not satisfied that the applicant’s relationship with the sponsor is genuine and continuing. Therefore the requirements of s 5CB(2) are not met at the time of this decision and the Tribunal finds that the applicant is not in a de facto relationship with the sponsor.
Visa criteria findings
As the applicant is not the de facto partner of the sponsor at the time of this decision she does not meet cl 801.221(2)(c).
Furthermore, the applicant has not claimed and there is no evidence before the Tribunal that she meets the alternative criteria in cl 801.221(2A), (3), (4), (5) or (6).
The applicant therefore does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.
Mila Foster
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.09A     De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).

[2024] AATA 219

9 February 2024

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