Deeraksa (Migration)

[2021] AATA 1112

Deeraksa (Migration) [2021] AATA 1112 (11 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Natchanan Deeraksa

CASE NUMBER:  1820832

HOME AFFAIRS REFERENCE(S):          BCC2016/2426216

MEMBER:David Crawshay

DATE OF ORAL DECISION:  11 March 2021

DATE OF WRITTEN STATEMENT:         17 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211 of Schedule 2 to the Regulations; and

·cl 820.221 of Schedule 2 to the Regulations; and

·r.2.03A.

Statement made on 17 March 2021 at 1:08pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and ongoing relationship – joint holidays – financial hardship – home and work routines – joint business plans – relationship registered – decision under review remitted      

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 1.15, 2.03

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 21 July 2016 on the basis of 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 (Cth) (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 visa applicant did not satisfy cl 820.211(2)(a) because the delegate was not satisfied there was sufficient evidence to demonstrate that she was the spouse or de facto partner of the sponsor.

4. The applicant appeared before the Tribunal on 10 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal found the parties to be witnesses of credit and gives their testimony weight due to this fact.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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

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

   BACKGROUND

8. The applicant travelled to Australia on a visitor visa in December 2015 and applied for an was granted a further visitor visa in March 2016.

9. The parties claim to have met in March 2016 at the Commercial Club in Albury. The parties claim that the applicant had earlier broken up with her ex-boyfriend because she found out that he had been cheating on her. They claim that the sister of her ex-boyfriend had taken pity on her, and had kicked her brother out of the house and let her stay there. The parties claim that the sister had taken her to the club and had invited the sponsor to attend and meet the applicant. The parties claim that the sister’s daughter was friends with the sponsor’s daughter so there was a connection.

10. The parties claim to have spoken to each other that night and to have seen each again a few weeks later at the club. The sponsor claims to have asked the applicant to move in with him in late-April 2016, and she did. The parties claim that their relationship then developed to a point where they applied for and were granted a relationship statement on 22 August 2016. On 10 March 2018, the parties were married at a restaurant in Wodonga and claim that family from both sides and their friends were in attendance.

11. The visa was applied for on 21 July 2016 but was refused on 8 July 2018. A review of that decision was lodged on 18 July 2018.

12. The parties claim to have taken several holidays to places in Australia such as Melbourne, Sydney, Wagga Wagga and Queensland. They also travelled to Thailand where they claim to have visited the applicant’s family in Kalasin and other places.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. In this matter, the parties claim to have married after the time of application. Before this time, the parties claim to have been in a de facto relationship. The issue in the present case is therefore whether the applicant was the de facto partner of the sponsor at the time of application under s.5CB of the Act and whether she is the spouse of the sponsor at the time of decision under s.5F of the Act.

    Whether the parties are in a spouse or de facto relationship

14. Clause 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 that she was the de facto partner of the sponsor at the time of application and is the spouse of the sponsor at the time of decision. The sponsor is an Australian citizen.

    Are the parties validly married?

15. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has sighted a copy of a certificate in respect of a marriage that took place on 10 March 2018 and is satisfied that the document is genuine and the parties were free to marry each other. 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).

    Were the parties in a de facto relationship at the time of application and are they currently in a spousal relationship?

16. “De facto partner” is defined in 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)(a)-(d).

17. “Spouse” is defined in 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).

18. In forming an opinion whether they are in a de facto or spousal relationship consideration must be given 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.1.09A(3) and r.1.15A(3) which are attached to this decision. Each of the specific matters contained in those regulations is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the other requirements for a spouse relationship met?

    The financial aspects of the relationship

19. The Tribunal heard from the parties that they live in a property in North Albury that is owned by the sponsor. The applicant told it that she works for the sponsor as a type of administrative assistant. The evidence shows that the sponsor is the main breadwinner in the relationship.

20. The applicant told the Tribunal that they have a joint bank account. She said that the parties would do the shopping together. The sponsor spoke to the same details. The Tribunal has been provided with two years’ worth of statements from July 2018 to June 2020 from the parties’ joint transaction account showing regular transactions including payments for groceries, clothing, entertainment, utilities and other expenses. It accepts that this account has been operated in a manner consistent with the parties being in a relationship.

21. The Tribunal notes that there is little evidence to show the parties have integrated their finances. However, it accepts that the sponsor is the main breadwinner out of the parties and their finances reflect this fact. As above, the Tribunal accepts that the parties’ joint transaction account has been used in a way that suggests they are in a relationship.

22. The Tribunal is satisfied that the evidence of the financial aspects of the relationship points to the parties being in a genuine and continuing relationship.

    The nature of the household

23. The parties told the Tribunal that they have been living together since April 2016. Based on the consistency of their answers and its finding that they are credible witnesses, it accepts that they have been living together.

24. Regarding the parties’ daily routine, they told the Tribunal that the sponsor’s working hours are irregular in that he often performs night shift work, but sometimes has early day shifts and evening shifts. The parties both said that, when the sponsor works day shifts, the applicant wakes up with the sponsor to make him coffee in the morning and then attends to the housework when he leaves for work. Both parties told the Tribunal that the applicant prepares dinner for the sponsor which is invariably Thai food, which is his favourite. The parties said that the applicant performs most of the housework, including cooking.

25. The Tribunal has considered the evidence of the nature of the household and is satisfied that it shows the parties have been living together at the time of application and at the time of this decision.

    The social aspects of the relationship

26. The Tribunal has seen evidence in the form of photographs of the parties with members of both families and friends, and statutory declarations and letters from third parties which include both of the sponsor’s daughters. Based on this evidence, the Tribunal accepts that the parties have represented themselves to their families and friends as being in a relationship – firstly as de facto partners at the time of application and then as spouses more recently. The parties told the Tribunal that they invited around 30 people to their wedding at a venue in Wodonga, including family from both sides and friends. Furthermore, the Tribunal accepts that the parties are recognised by their friends, family and acquaintances as being in a committed relationship.

27. The parties have submitted evidence of having made several holidays to places in Australia such as Sydney, Melbourne and Wagga Wagga, and to Thailand. At hearing, the Tribunal also learnt that the parties have made other trips to Queensland. Furthermore, through evidence such as the declarations and letters from third parties and also from the photographs of the parties, it is clear that they enjoy socialising with their friends and with the sponsor’s family members including his two daughters. The Tribunal is satisfied that the parties have planned and undertaken joint social activities during the period they claim to have been in a relationship with each other.

28. The Tribunal is satisfied that the evidence indicates the parties’ relationship has been genuine and continuing at the time of application and at the time of this decision.

    The nature of the parties’ commitment to each other

29. The Tribunal has considered the evidence provided in relation to the parties’ commitment to each other. It accepts based on this evidence and especially on the parties’ testimony at hearing that the parties met as claimed and that their relationship developed as claimed. It accepts that at the time of application the parties had been in a relationship for around three months and for almost five years at the time of this decision. The Tribunal also accepts that the applicant moved in with the sponsor in April 2016.

30. Based on the substantially consistent evidence given by the parties and on the detailed and intimate knowledge they have displayed of each other’s lives including their families, work history, hobbies and interests, and other elements, the Tribunal accepts that they draw a substantial degree of companionship and emotional support from each other. At hearing, the Tribunal heard from the sponsor that the parties have hardly spent a say apart since they began their relationship and the Tribunal accepts that this is the case. The parties appear to have a high degree of emotional investment in each other and in their relationship.

31. The Tribunal heard separately from the parties that they would like to move to Queensland to open up a restaurant or café as they like the warmer weather. The Tribunal also heard from the sponsor that he would be willing to sell up and move to Thailand if the applicant’s visa were not granted. Based on this and on other evidence, the Tribunal accepts that the parties view their relationship as a long-term one.

32. The Tribunal has considered the above evidence and accepts that it demonstrates the parties have had a commitment to a shared life together to the exclusion of all others, that their relationship has been genuine and continuing and that they have lived together at the time of application and at the time of this decision.

    Are the parties related to each other?

33. The Tribunal is satisfied that the parties are not related to each other, which bears on the question of whether they were in a valid de facto relationship at the time of application.

34. On the basis of the above the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time the visa application was made.

35. Therefore, the applicant meets cl 820.211(2)(a).

36. The Tribunal is satisfied that the applicant was sponsored by the sponsor at the time of application as per cl.820.211(2)(c)(i) and that the applicant held a substantive visa at the time she applied for the present visa and therefore does not need to satisfy the requirements under cl.820.211(2)(d).

37. Therefore, the applicant meets cl.820.211.

38. Because the applicant has continued to meet the requirements of cl.820.211(2) at the time of the decision, albeit as a spouse of the sponsor and not as a de facto partner, she meets cl.820.221.

    Are the additional criteria for a de facto relationship met?

39. Although the Tribunal has assessed the parties against the spousal criteria at the time of decision, the parties still need to satisfy the additional criteria in r.2.03A because they claim to have been in a de facto relationship at the time of application. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

40. The applicant must have been in the de facto relationship for at least the 12-month period ending immediately before the date of the application: r.2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

41. The applicant has provided a relationship certificate dated 22 August 2016 listing both parties. The Tribunal is satisfied that the parties’ relationship is registered under the Births Deaths and Marriages Registration Act 1995 (NSW) as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: r.2.03A(5). Accordingly, the 12-month requirement does not apply.

42. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A.

43. 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 820 visa.

    DECISION

44. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211 of Schedule 2 to the Regulations; and

    ·cl 820.221 of Schedule 2 to the Regulations; and

    ·r.2.03A.

    David Crawshay
    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).