Hunt (Migration)

[2021] AATA 1479

Hunt (Migration) [2021] AATA 1479 (18 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Supisara Hunt

CASE NUMBER:  1910266

HOME AFFAIRS REFERENCE(S):          BCC2018/1449689

MEMBER:P. Maishman

DATE:18 March 2021

PLACE OF DECISION:  Perth

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(2) of Schedule 2 to the Regulations,

·cl 820.221(1) of Schedule 2 to the Regulations.

Statement made on 18 March 2021 at 12:33pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 –long-term genuine relationship – applicant was not the holder of a substantive visa at the time of application – an Australian citizen daughter – compelling reasons exist – Schedule 3 requirements  waived –credible and honest witness –decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 820.211, 820.221, Schedule 3

CASES
He v MIBP [2017] FCAFC 206
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Waensila v MIBP [2016] FCAFC 32

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 28 March 2018 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 provided by the applicant to demonstrate she is the spouse of her sponsor.

4. The applicant appeared before the Tribunal on 16 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Douglas John Hunt.

5. The Tribunal was assisted by an interpreter of 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal had before a copy of the Department’s file containing the visa application, sponsorship form and evidence received in support of the application.

9. The applicant gave the Tribunal copy of the delegate’s decision record with her application for review. The delegate accepted that evidence in relation to the social aspects of the relationship indicated the relationship was genuine, however had considerable concerns that inconsistent evidence was provided in relation to the financial aspects and living arrangements of the parties.

10. The Tribunal wrote to the applicant on 11 February 2021 inviting the applicant to provide evidence in support of her application. The invitation included a list of the type of evidence that may assist her application.

11. The Tribunal received additional evidence was not before the delegate including:

    a.a statutory declaration signed witness on 9 February 2021 from Christopher John Charles Hunt, the sponsors son;

    b.a statutory declaration signed and witnessed on 25 February 2021 from Vasilios Toutountzis, neighbour of the parties;

    c.two undated letters from the sponsor received on 10 March 2021 and 11 March 2021;

    d.an undated letter from the applicant received on 11 March 2021; and

    e.an email from the sponsor with reference to the sponsors historical business dealings.

12. The applicant and sponsor gave evidence separately at the hearing. The Tribunal questioned them about their relationship history, development of their current relationship, knowledge of each other’s backgrounds and family relationships, the financial, social and household aspects of their relationship and the nature of their commitment to each other. Their responses were generally consistent, differing enough to indicate they were providing authentic responses from their own perspectives and knowledge. The Tribunal found the applicant and sponsor to be credible and honest witnesses and accepts their oral evidence on that basis.

13. The issue in the present case is whether the applicant is the spouse of the sponsor.

    Whether the parties are in a spouse or de facto relationship

14. 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.

15. ‘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 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 reg 1.15A(3), 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.

    Are the parties validly married?

16. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Department file contains a translated copy of a Thai marriage certificate showing the marriage was registered on 29 May 2008. There is nothing before the Tribunal that suggests the marriage is not valid. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Are the other requirements for a spouse relationship met?

17. The Tribunal considered each matter set out in r.1.15A(3).

18. The Tribunal considered the financial aspects of the parties’ relationship including whether they have joint ownership of assets or joint liabilities, any legal obligations owed in respect of each other, the pooling of their financial resources and any sharing of day-to-day household expenses.

19. The applicant and sponsor gave consistent evidence the applicant has not been employed and has been financially supported by her sponsor, either personally or through his business interests, since their marriage. The applicant has always had access to finances by the use of her own ATM card using joint accounts they established in Thailand, and later America when they left there. They do not have a joint account in Australia because it was easier for the sponsor just to open an account in his own name because of the applicant’s residential status. The sponsor has always covered the costs of rent, bills and day-to-day living expenses. The applicant uses her own card to access the account and shops and daily because the sponsor is busy working. The Tribunal received a copy of a card from HSBC Premier account showing both their names on the account name and an ATM access card in the applicant’s name. The card has an issue date of August 2008. The Tribunal received a copy of the sponsors ANZ bank account showing regular debits at supermarkets, grocery stores, and for day-to-day living expenses.

20. The parties individually gave evidence the sponsor had paid for a property in Thailand in the name of the sponsor and their daughter. Thailand does not permit ownership of property by foreign nationals, so the sponsor is not included as an owner of that property. The applicant’s mother now lives on the property and the parties visit when they travel to Thailand. This is their only substantial asset. They each have motor vehicles provided for by the sponsors company.

21. The Tribunal accepts the applicant and sponsors oral evidence supported by the documents received after the hearing. There is no evidence of joint ownership of assets or joint liabilities. The Tribunal accepts the applicant is supported financially by the sponsor and they pool their financial resources and the sponsor pays for day-to-day household expenses. There are no legal obligations owed to each other.

22. The financial aspects of the relationship between the parties is indicative of a couple in a spouse relationship.

23. The Tribunal considered the evidence in respect of the nature of the parties’ household including joint responsibility for care and support of children, their living arrangements, and any sharing of housework.

24. The applicant and sponsor gave evidence they are jointly responsible for the care and support of their daughter who is 10 years old and attends school. The parties gave specific details of the layout of their accommodation and their sleeping arrangements. The parties gave evidence the applicant looks after the household and the sponsor is heavily involved in his work.

25. The applicant and sponsors oral evidence was consistent. After hearing the Tribunal received a copy of the parent contact details from their daughter’s school. The applicant and sponsor are listed as parents contactable at the same address. 

26. The nature of the parties’ household is indicative of a couple in a spouse relationship.

27. The Tribunal considered the evidence in respect to the social aspects of the parties’ relationship including whether they represent themselves to other people as being married to each other, the opinion of their friends and acquaintances about the nature of the relationship, and the basis on which the parties plan and undertake joint social activities.

28. The Tribunal received a statutory declaration from the sponsor’s adult son, Christopher. The statutory declaration confirms he has known the applicant to be his father’s spouse, and his stepmother, since they met in 2006. He lived with them both for a substantial period while he completed his schooling in Bangkok and America. He has not known. Since 2006 that they have not been in a bone fide relationship.

29. Vasilios Toutountzis provided a statutory declaration dated 25 February 2021. He declares he has been the parties neighbour for over six years and confirms they lived together and represent themselves to their many friends as such.

30. The Tribunal accepts the statutory declarations received, supported by photographs and statutory declarations contained on the Department’s file.

31. The Tribunal is satisfied the social aspects of the parties’ relationship are indicative of a couple in a spouse relationship.

32. The Tribunal has considered the evidence provided in relation to the parties’ commitment to one another including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see their relationship as long-term.

33. The parties gave consistent oral evidence their relationship has been and will continue to be long-term. The sponsor has, prior to them both coming to Australia, undertaken extensive travel for his business concerns but has always returned to his home with the applicant. The sponsor provided details of their coming to Australia to help with his father who are suffering ill health. The sponsor described the applicant’s support to him during that difficult time. The parties gave consistent evidence of their hope to purchase some land and build a property close to where they are currently living in the near future.

34. The Tribunal is satisfied the nature of the applicant and sponsors commitment to each other is indicative of a couple in a spouse relationship.

35. ­­­­­­­­­­­The Tribunal notes the concerns of the Department’s delegate in relation to the lack of substantial evidence. The Tribunal has had the opportunity to observe the interaction of the applicant and sponsor during the hearing process. The interaction between them was natural and affectionate. The Tribunal was persuaded that the affection and comfort shown by the applicant and sponsor to one another were not confected for the Tribunal’s benefit. The Tribunal attributes weight to the natural affection and comfort provided by the parties to each other as indicative of a couple in a long-term spouse relationship.

36. Having considered the matters contained in r.1.15A(3) individually and holistically the Tribunal finds that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of others. Their relationship is genuine and continuing and they live together.

37. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.

38. Therefore the applicant meets cl 820.211(2)(a).

    Is the applicant sponsored?

39. Clause 820.211(2)(c) 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).

40. The Department’s file contains a copy of the sponsor’s passport and birth certificate. The sponsor has completed a sponsorship form in respect of the applicant.

41. The Tribunal is satisfied the applicant is sponsored by her spouse who has turned 18.

42. On the evidence before the Tribunal the requirements of cl 820.211(2)(c) are met.

    Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?

43. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl 820.211(2)(d).

44. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.

    Criterion 3001

45. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.

46. The delegate’s decision record reports the applicant was in Australia as the holder of a Tourist visa that expired on 26 May 2014. The applicant made a further onshore Tourist visa application 26 May 2014 and was granted a Bridging A (subclass 10) visa pending the determination that application. The applicant does not dispute this to be correct.

47. Having regard to the information held on the Department’s file, the Tribunal finds the applicant last held a substantive visa when her Tourist visa ceased on 26 May 2014. This is the ‘relevant day’ as defined in criterion 3001(2)(c)(i).

48. The applicant was not the holder of a substantive visa when she made her Partner visa application on 28 March 2018. The Tribunal finds the visa application was made more than 28 days after the relevant day.

49. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

50. As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.

51. The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

52. The sponsor told the Tribunal it was his misunderstanding that led to the applicant not holding a substantive visa. His wife had entered Australia several times prior to 2014 is the holder of a tourist visa. Despite having been married since 2007, they did not apply for an Australian partner visa because they were not certain that would settle back in Australia. At the time he and his wife had been granted a permanent residence visa for America and were considering living in America. They returned to Australia because the sponsors father was unwell. The sponsors understanding of the information he had received from a discussion with the Immigration Department was that he and his wife would have to wait four years for a partner visa to be valid.

53. There is no information before the Tribunal that sheds light on why the Tourist visa applied for by the applicant in 2014 was not determined prior to the Partner visa application being made in 2018. The Tribunal is satisfied however that the applicant remained in Australia lawfully, albeit as the holder of a bridging visa.

54. The applicant told the Tribunal their daughter is an Australian citizen, which is evidenced by her passport, and has been attending school since arriving in Australia. If the applicant was required to go offshore to make the visa application her husband would be unable to provide full-time care for their daughter due to his work commitments. Their daughter is close to the stepbrothers and the sponsors extended family. It would be unreasonable for the applicant to take her daughter out of the Australian school system and away from her father if she had to go offshore to make the visa application.

55. The Tribunal finds the impact on the applicant’s daughter of being separated from either of her parents or to remove their daughter from the Australian school system are compelling reasons for not applying the Schedule 3 criteria.

56. The Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

57. On the basis of the above the Tribunal is satisfied that the requirements of cl.820.211(2) are met.

58. The Tribunal is satisfied the applicant continues to meet the requirements of cl.820.211(2) at the time of this decision and so satisfies cl.820.221(1)(a).  

59. 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

60. 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(2) of Schedule 2 to the Regulations

    ·cl 820.221(1) of Schedule 2 to the Regulations]

    P. Maishman
    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).