CHANWANPEN (Migration)

[2021] AATA 2674

CHANWANPEN (Migration) [2021] AATA 2674 (2 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Pattamaporn CHANWANPEN

CASE NUMBER:  1800049

HOME AFFAIRS REFERENCE(S):          BCC2016/821996

MEMBER:Russell Matheson

DATE:2 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 02 June 2021 at 11:09am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – subclass 820 (Partner) – definition of spouse – divorced sponsor – applicant remarried – PTSD from stillbirth – birth of second
Australian citizen child – referred for ministerial intervention

LEGISLATION
Migration Act 1958, ss 5F, 65, 351

Migration Regulations 1994, Schedule 2, cls 820.211(2)(a), 820.221, r 1.15A(3)

CASES
He v MIBP [2017] FCAFC 206

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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 February 2016 based on her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy              cl 820.211(2)(a) because the applicant did not meet the definition of spouse under s.5F of the Act. Specifically, the delegate found that there was insufficient evidence to demonstrate that the applicant was the spouse of the sponsor. A copy of the delegate’s decision was submitted to the Tribunal by the applicant.

4. The applicant appeared before the Tribunal on 1 June 2021 to give evidence and present arguments. The sponsor, Mr Alex Kargbo did not attend the hearing. The Tribunal also received oral evidence from the applicant’s mother-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. The applicant was represented in relation to the review by her authorised representative, Mrs Kim McSweeney (the applicant’s mother-in-law).

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

7. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s 5F of the Act.

9. The Tribunal has before it the applicant’s file from the Department of Home Affairs (the Department); its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal.

10. The evidence the applicant provided at the Tribunal hearing is recorded throughout this decision record.

    Whether the parties are in a spouse or de facto relationship

11. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

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). In forming an opinion about these matters, regard must be had to all 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 reg 1.15A(3) of the Regulations, which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Is the applicant sponsored?

13. Clause 820.211 requires that at the time of application, the applicant meets one of several alternative sub criteria. These include cl 820.211(2)(c), which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).

14. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 820.221.

15. Approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in reg 1.20KA of the Regulations which sets a limit on the period before which certain Partner visa holders can sponsor another person for a Partner visa. There are further limits imposed by reg 1.20KB of the Regulations in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010, and reg 1.20KC of the Regulations for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.

16. On 27 February 2020 the Tribunal wrote to the applicant requesting her to provide information regarding her spousal relationship with her sponsor under reg 1.15A of the Regulations. The Tribunal asked the applicant to provide information regarding the financial and social aspects of the relationship, the nature of the household and the nature of the persons’ commitment to each other and to respond to the request by 12 March 2020. On 6 March 2020 the applicant wrote to the Tribunal requesting an extension of time and was granted until 20 March 2020 to respond. On 18 March 2020 the applicant responded to the request through her authorised representative and provided her own personal statement dated 17 March 2020 and provided additional information to the Tribunal on 28 May 2021. The information and documents the applicant provided included but were not limited to the following:

    ·That she married her sponsor Mr Alex Kargbo in February 2016;

    ·That her marriage to the sponsor broke down in 2017;

    ·That her visa application was refused by the Department in November 2017;

    ·That she commenced a de facto relationship with Mr Ned McSweeney in 2018;

    ·That she became pregnant to Mr McSweeney and gave birth to a child that was stillborn in August 2019 at Bowral Hospital;

    ·That she divorced her sponsor Mr Alex Kargbo in January 2020;

    ·That she married Mr McSweeney in March 2020;

    ·That she again became pregnant to Mr McSweeney and gave birth to a child (son) in April 2021;

    ·She has requested that her partner visa be granted on compassionate grounds: and

    ·Statements from family and friends attesting to the genuineness of her relationship with Mr McSweeney.

17. Additionally, the applicant submits that according to 1NIHR Clinical Lecturer in Obstetrics and Gynaecology, University of Bristol, School of Social & Community Medicine, Obstetrics and Gynaecology, Southmead Hospital, Westbury on Trym, Bristol BS10 5NB, UK: From grief, guilt pain and stigma to hope and pride – a systematic review and metanalysis of mixed-method research of the psychosocial impact of stillbirth. Research Article 2016:

    Conclusion:

    Experiencing the birth of a stillborn child is a devastating life-changing event for parents and the wider family. The consequences of stillbirth may vary with parent gender and country. Grief suppression, employment difficulties and financial debt, and increased substance use are particularly prominent in fathers, whereas altered body image and impact on QoL are more specific to mothers. In LMIC stigmatisation, rejection and abuse are widespread.

18. The applicant provided evidence that she does not want to leave Australia and leave her baby behind as she has already faced the traumatic experience of losing a child and this has caused her much anguish and caused psychological problems that she and her partner continue to deal with on a daily basis, and they rely on their immediate family and local monks for spiritual guidance and support whilst dealing with PTSD. The applicant further states that her child is only six weeks old and it would be harmful for her child to travel to Thailand where the COVID-19 pandemic (Indian strain) is at its worst, placing the child’s life at risk. The applicant also states that her new partner, Mr McSweeney cannot leave his employment in Australia as he has a mortgage to pay and would have to rely on Government benefits to care for his family and newborn child. The Tribunal accepts that the applicant would prefer to remain in Australia providing care, comfort, and support to her newborn child that she is breastfeeding and that the couple would suffer some degree of financial hardship if they were separated. The applicant requested the Tribunal to show compassion and not to separate the family who have suffered emotionally from the loss of their first child and are suffering anxiety at the prospect of being separated, which could cause the breakdown of the family unit. The Tribunal accepts that unique or exceptional circumstances may exist in this case, but there is no criterion that allows the Tribunal to make a favourable decision based on compassionate circumstances relevant to this partner visa application, as the applicant’s relationship with her sponsor has ceased and sponsorship has not continued. Although the Tribunal is not required to make findings about the new spousal relationship that the applicant claims to be in, the Tribunal informed the applicant that it held a view that the claimed relationship was genuine.

19. The Tribunal, on the evidence, is not satisfied that at the time of this decision the applicant has provided any evidence that supports a positive assessment of the guideline matters for assessing partner visa applications as set out in reg 1.15A.  Based on the oral evidence of the applicant, the parties are divorced. The applicant provided a copy of her divorce certificate dated 21 January 2020. As they are no longer together and applicant has remarried on 21 March 2020 and she claims to be in a spousal relationship with someone else, the Tribunal is not satisfied that the applicant and sponsor have any financial or household arrangements, that they undertake any joint social activities, or provide each other with any support or companionship at the time of this decision.

20. Accordingly, the Tribunal is not satisfied that at the time of decision, the applicant was sponsored by Mr Kargbo.

21. Where a relationship has ceased and/or sponsorship has been withdrawn, a visa may be granted in certain circumstances.  Those circumstances are:

    ·the death of the sponsor (cl 820.221(2)); or

    ·where the visa applicant and/or a dependent child of the sponsoring partner or of the visa applicant or of both of them, has suffered family violence committed by the sponsoring partner (cl 820.221(3)(b)(i)); and/or

    ·the visa applicant and sponsor have custody or joint custody of, or access to at least one child and have shared rights and obligations towards that child   (cl 820.221(3)(b)(ii)).

22. The Tribunal finds no evidence that the sponsor is deceased.  Therefore, the applicant does not meet cl.820.221(2).

23. The Tribunal finds no evidence that family violence has occurred.  Accordingly, the applicant does not meet cl 820.221(3)(b)(i).

24. The Tribunal finds no evidence that there is a child of the relationship and accordingly          cl 820.221(3)(b)(ii) is not applicable.

25. On the evidence before it, the Tribunal is not satisfied that the requirements of   cl 820.211(1)(b) and cl 820.221 are met.

26. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    MINISTERIAL INTERVENTION

27. At hearing, the applicant admitted that her relationship had ceased. Through questioning, the Tribunal ascertained that she was not seeking to rely on any of the exceptions under cl 820.221(2) or cl 820.221(3). She instead requested the Tribunal to refer her matter to the minister for his intervention.

28. Ministerial intervention is a discretion given to the minister to substitute for a decision of the Tribunal another decision that is more favourable to the applicant if the minister thinks it is in the public interest to do so.

29. The Tribunal has considered the minister’s guidelines when coming to a decision about whether to make a referral to him for intervention under s 351of the Act, including those relating to “unique or exceptional circumstances”. It notes the applicant’s claim to have given birth to a child on 12 April 2021 who is an Australian citizen by virtue of the child’s father being an Australian citizen. The Tribunal has been provided with a birth certificate registered on 12 April 2021 showing the child’s mother and father.

30. The Tribunal has not undertaken a verification process to ascertain the genuineness or otherwise of the documents provided or their contents. It suffices for the Tribunal that the characteristics of the child vis-à-vis the purported father are consistent with them being related. The Tribunal accepts, based on the evidence before it, that the applicant’s son is an Australian citizen and therefore she and her son may be characterised as an Australian family unit.

31. The applicant has a newborn son and the Tribunal is of the view separating the parents from their children during an early developmental phase would be an undesirable outcome which would impact the health and future outcomes for the child. The bond that a child develops with their parents, particularly as a babies and toddlers, is fundamental to their flourishing and children without secure parental bonds are more likely to have behaviour and literacy problems. (Moullin, Sophie; Waldfogel, Jane; Washbrook, Elizabeth, Baby Bonds: Parenting, Attachment and a Secure Base for Children, March 2014).

32. The Tribunal has considered the traumatic and devastating life-changing event for the couple and the wider family and associated grief of losing a child, and the emotional, mental and psychological impacts upon the couple and their continued suffering daily. The Tribunal accepts that the applicant has psychological challenges that have been diagnosed and risk being amplified with her departure back to Thailand, making the role of mother to her son even more difficult.

33. Based on the evidence in front of it, the Tribunal accepts there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the applicant’s family unit, including the applicant’s Australian citizen child. Accordingly, the Tribunal has chosen to refer this matter to the minister.

    DECISION

34. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Russell Matheson
    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).