Chhim (Migration)

[2017] AATA 901

Chhim (Migration) [2017] AATA 901 (22 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Somphors Chhim

CASE NUMBER:  1614067

DIBP REFERENCE:  CLF2016/32340

MEMBER:Deborah Morgan

DATE:22 May 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 22 May 2017 at 4:39pm

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Genuine and continuing relationship – Breakdown of relationship – Sponsor commenced another family – No child of the relationship – Applicant seeking divorce

LEGISLATION

Migration Act 1958, ss 65, 345, 351, 391, 417, 454, 501

Migration Regulation 1994, Schedule 2, cl 801.221, r 1.15A, r 1.23

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 (the delegate) on 16 August 2016 to refuse to grant Ms Somphors Chhim the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 September 2012 on the basis of her relationship with her sponsor, Australian citizen, Mr Ty Sao (the sponsor). 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 (the Regulations). The primary criteria must be satisfied by the applicant. Relevantly to this matter the primary criteria include cl.801.221 that is to satisfied at time of decision.

3. By way of immigration history, the applicant was granted a Subclass 300 visa and first arrived in Australia on that visa on 26 May 2012. She was subsequently granted a Subclass 820 Partner visa on 4 October 2012. The applicant currently holds a Bridging visa A. 

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy any of the alternative criteria in clause 801. 221 at time of decision.

5. The applicant appeared before the Tribunal on 22 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

6. The applicant was represented in relation to the review by her registered migration agent.

7. The migration agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant was born in Cambodia on 2 March 1992.

10. The sponsor was born in Cambodia on 22 October 1982. He is an Australian citizen by grant on 26 February 1996 (Department file, folio 67).

11. The applicant and the sponsor married in South Australia on 13 July 2012 (Department file, folio 78).

12. There are no children of the relationship.

13. On 6 June 2016 the applicant informed the Department that her relationship with the sponsor had broken down.

14. On 7 June 2016 the Department of Immigration (the Department) wrote to the applicant and invited her to submit additional information relevant to the breakdown of her relationship.

15. The applicant responded to the Department’s letter and confirmed that she separated from the sponsor on 25 March 2016 because he had formed a relationship with another woman and had a child with that person.  The applicant also provided Form 1022 notifying the Department that she no longer cohabited with the sponsor and that she had changed her address.

16. The applicant provided a copy of the delegate’s decision to refuse the Subclass 801 visa to the Tribunal.

17. In the Tribunal’s invitation to hearing dated 27 March 2017 the applicant was invited to refer to the reasons for refusal of the visa and to provide any new material in support of the application for review prior to the hearing.

18. No further material was submitted prior to the Tribunal hearing.

    The Tribunal hearing

19. The applicant’s oral evidence is summarised as follows:

    ·There are no children of her relationship with the sponsor.

    ·To her knowledge the sponsor is alive.

    ·She has applied for divorce from the sponsor in April 2017 but has not heard from the court.

    ·She has a boyfriend, Mr Mark Kirkbright (who attended the hearing to give her support).

    ·The sponsor has two children by another woman - both children were born after the applicant married him.

    ·The sponsor did not commit family violence towards her.

    ·The applicant has discussed the issue of family violence with her representative.

    ·The sponsor “emotionally harmed” her by breaking his promise to her that he would cease his relationship with the other woman. 

20. The applicant informed the Tribunal that the representative continues to represent her.

    Issue before the Tribunal

21. The issue in the present case is whether the applicant meets any of the criteria in clause 801.221 at time of decision.

    Whether the parties are in a spouse or de facto relationship

22. 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.

23. As the relationship between the applicant and the sponsor ended in March 2016, the applicant no longer claims to be the spouse of the sponsor at time of decision.

24. With respect to the four factors in regulation 1.15A(3)(attached), the Tribunal is satisfied on the basis of the applicant’s oral evidence that at time of decision the applicant and the sponsor do not combine their financial affairs in any way; they do not socialise as a couple with third parties; they do not share a household; and, their relationship has ended and they are not mutually committed to each other as partners.

25. For the above reasons the Tribunal is not satisfied that at the time of this decision the applicant is in a spousal relationship with the sponsor. Therefore the applicant does not meet cl.801.221(2).

    Consideration of alternative criteria in clause 801.221

26. The Tribunal now addresses the other criteria relevant to this case that are contained in subclauses 801.221 (2A), (3), (4), (5), (6) and (8).

27. Clause 801.221(2A) refers to applicants who hold Subclass 820 visas granted by the Minister of Immigration under sections 345, 351, 391, 417, 454 or 501 of the Act and the applicant is the spouse of the sponsor. This subclause does not apply to the applicant because she was not granted the Subclass 820 visa under the sections of the Act and is not in a spouse relationship with the sponsor at time of decision.

28. Clause 801.221(3), (4), (5) and (6) refer to applicants whose relationship with the sponsor has ceased. 

29. There is no evidence that the sponsor in this case has died. Accordingly, subclauses 801.221(3) and (5) do not apply.

30. The Tribunal acknowledges that the applicant’s oral evidence she has suffered emotional harm because the sponsor breached his promise to cease his relationship with another woman.  In this context the Tribunal takes into account that the applicant, who is represented, has not made a non-judicially determined claim of family violence at review.  

31. The Tribunal is satisfied that it has not been claimed and there is no evidence that the applicant has suffered ‘family violence’ (as defined by Regulation 1.23) committed against her by the sponsor.

32. There is no child of the relationship in this case. Accordingly, the criteria in relation to child custody/residence order or contact order do not apply to the applicant.

33. For the above reasons the applicant fails to meet the alternative criteria in cl.801.221(4) and (6).

34. The applicant does not meet the alternative criteria in subclause 801.221(8) because she is not the subject of a favourable review decision in relation to Subclass 801.

35. Given the findings above, the applicant does not meet any of the criteria in clause 801.221 at time of decision and the application for review must therefore be affirmed.

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

    DECISION

37. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Deborah Morgan
    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).