Jittiwongjan (Migration)

[2019] AATA 4024

Jittiwongjan (Migration) [2019] AATA 4024 (23 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Witchuporn Jittiwongjan

CASE NUMBER:  1800218

DIBP REFERENCE(S):  CLF2013/207594

MEMBER:Christine Kannis

DATE:23 August 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.(2)(c)of Schedule 2 to the Regulations

Statement made on 23 August 2019 at 6:41am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – continuing spousal relationship – pooling of financial resources – inconsistent residential addresses – represent themselves as married couple – plans to start a family – commitment to each other – delegate’s concerns – discrepancy in the evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 801.221

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 on 21 December 2017 to refuse to grant 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 21 August 2013 on the basis of her relationship with her sponsor, Mr Eh Wei Htoo Dynamite. 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 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.801.221(2)(c) because the delegate was not satisfied the applicant continued to the spouse of the sponsoring partner.

4. The applicant appeared before the Tribunal on 25 July 2019 to give evidence and present arguments. She was accompanied by Ms Whitney Syaranamual. The Tribunal also received oral evidence from Mr Dynamite and Mr Bernhard Vintila.

5. The Tribunal was assisted by an interpreter in the Thai and English languages. After the hearing had commenced the applicant indicated to the Tribunal that she was having difficulty with the interpreter. A second interpreter was provided and the hearing proceeded.

6. The applicant’s registered migration agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Clause 801.221(2)(c) requires that at the time of this decision the applicant continues to be the spouse or de facto partner of the sponsoring partner. The issue in the present case is whether the relationship between the applicant and the sponsor continues to meet the definition of “spouse” in s.5F of the Act.

   Background

9. The applicant first arrived in Australia on 24 April 2010 on a student visa.

10. The applicant and the sponsor met in July 2010. A relationship developed and in December 2011 they became engaged.

11. The applicant and the sponsor were married on 11 May 2013.

12. On 21 August 2013 the applicant lodged a combined application for Subclass 820/801 visas.

13. On 8 February 2014 the applicant was granted a Subclass 820 visa.

14. The Department conducted telephone interviews with the sponsor on 10 February 2017, 17 February 2017 and 1 November 2017 and with the applicant on 17 February 2017 and 19 December 2017. Following the telephone interviews the Department sent the applicant a letter dated 21 February 2017 inviting her to comment on inconsistent information provided during the interviews. She provided a written response on 27 March 2017.

15. Prior to the hearing the applicant’s representative provided documentation which included but was not limited a written submission, Statutory Declarations, bank account statements, evidence of travel and photos. Following the hearing the applicant provided additional documentation. The Tribunal had before it significantly more information than was available to the delegate. 

    Whether the parties are in a spouse or de facto relationship

16. The evidence before the Tribunal included a Marriage Certificate issued by the Registry of Births, Deaths and Marriages, Perth WA which showed the applicant and the sponsor were married on 11 May 2013.  The Tribunal was satisfied that 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).

17. Section 5F 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 husband and wife 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.  In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the parties’ relationship as well as evidence with respect to the nature of their household and their commitment to each other, as set out in r.1.15A(3), which is extracted in the attachment to this decision.

18. The Tribunal considered the r.1.15A(3) matters.

    Financial aspects of the relationship

19. The Tribunal considered the evidence in relation to the financial aspects of the parties’ relationship including the joint ownership of assets, any joint liabilities, the extent of pooling of financial resources, any legal obligations owed to the other party and any sharing of day-to-day household expenses.

20. The applicant told the Tribunal she looks after the family’s finances. She said in 2018 she and the sponsor purchased a house and land package and the house is due for completion in August 2019. The property is in joint names and she provided the deposit of $16,000 from an inheritance from her father. The monthly mortgages repayments are $1,700 and these will be paid by applicant and the sponsor. The applicant is employed on a permanent part-time basis and the sponsor works on a full-time basis. Together they earn $3,000 per fortnight and so they will be able to service the mortgage.

21. Following the hearing the applicant provided copies of a Contract for Sale of property dated May 2018 in the parties’ joint names, mortgage documentation dated August 2018 in their joint names and a Certificate of Title showing they own a property in their joint names.

22. The information provided prior to the hearing included 2019 bank statements for accounts in the applicant’s name, in the sponsor’s name and in their joint names. The joint account showed credit transactions described as “Salary Spotless Facilit” as well as credits identified by the applicant’s name or the sponsor’s name. Credits of $5,000 on 29 May 2019 and of $10,000 on 11 June 2019 were partly described as “Family Support”.

23. The applicant told the Tribunal that her salary from her employment is paid into the joint account. The sponsor’s salary is paid into his account and he transfers money into her account which she then transfers into the joint account for payment of joint expenses. Sometimes the sponsor will transfer money directly into the joint account also. The Family Support deposits were gifts from her mother and were intended to pay for furniture for their new home.

24. The joint account debit transactions included food purchases and movie theatre and Uber expenses.

25. The Tribunal accepted the parties’ evidence that they pool part of their salaries and pay for joint expenses from the joint account. The Tribunal accepts that the applicant’s family have provided money for the deposit on the parties’ new home and have gifted money for furniture. The Tribunal found the parties jointly own real estate and are joint mortgagors. The Tribunal decided that these are indicators of a spousal relationship at the time of decision.

    Nature of the household

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

27. The delegate referred to the applicant and the sponsor providing inconsistent evidence with respect to their residential address. The inconsistent evidence was provided during the telephone interviews and on Incoming Passenger cards. The Tribunal accepts the evidence contained in the applicant’s written response dated 27 March 2017 that the parties sometimes used the sponsor’s parents’ address for official correspondence.

28. The applicant told the Tribunal that they lived with the sponsor’s parents and brothers at Baxter Close Huntingdale (Baxter Close) after they were married for a period of six months. In December 2013 they moved to Wheatley Street Innaloo (Wheatley Street) where they rented a room from a married couple, Glenn and Thao Brooksby. In May 2017 they moved to a property at Balivanich Loop Seville Grove (Balivanich Loop). A Residential Tenancy Agreement indicating the applicant and the sponsor are the tenants of this property was provided.

29. The applicant and the sponsor purchased a property at Dowitcher Loop Gosnells and anticipate moving into the home on 15 August 2019.

30. Correspondence addressed to the applicant at Balivanich Loop in 2018 and 2019 was provided. The joint account statements were addressed to the parties at Balivanich Loop in 2018 and 2019.

31. The delegate referred to a Vodafone account dated 12 November 2016 addressed to the applicant at Hertha Road Innaloo. The applicant told the Tribunal that this was her address prior to marrying the sponsor. She said her phone account was registered at this address however as she was billed by email she did not change the registered address. The Tribunal accepted this evidence.

32. Regarding the division of household duties the applicant said she is responsible for shopping and cooking and the sponsor is responsible for the cleaning and laundry. The sponsor gave similar evidence in this regard.

33. The Tribunal finds that the nature of the household of the applicant and the sponsor at the time of decision is an indicator of a genuine and continuing spousal relationship.

    Social aspects of the relationship

34. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether parties represent themselves to other people as being in a spousal relationship with each other, the opinion of friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.

35. Statutory Declarations made by Emma Som, Joy Latt and Klaus Bernhard Vintila in July 2019 were provided. Ms Som is a friend of the applicant and the sponsor and attends the same church as them. Her reasons for believing the parties’ relationship is genuine and continuing were general in nature and the Tribunal gave her evidence minimal weight. Ms Latt said the parties are close family friends. She was bridesmaid for the applicant. Ms Latt’s reasons for her belief that the parties’ relationship is genuine and continuing were general and included that the applicant feeds the sponsor and looks after their household. The Tribunal accepts that Ms Latt regularly socialises with the parties as a couple.

36. Mr Vintila is a friend of the parties. He gave oral evidence at the hearing and said he sees the parties every two months. He said he has attended three family barbeques where the applicant and the sponsor were also present. In his Statutory Declaration Mr Vintila said he attended their wedding and socialises with them on a regular basis. Mr Vintila referred to the home the parties have recently built and said he looked forward to becoming a “pseudo uncle” when they have a family. The Tribunal gave this evidence some weight.

37. A Statutory Declaration made by Thao Brooksby in May 2018 was provided. Ms Brooksby was the parties’ former landlord when they resided at Wheatley Street. As this evidence was more than 12 months old the Tribunal gave it minimal weight.

38. The applicant told the Tribunal that she and the sponsor see their friends when they attend church every week. They often eat together after the service. She said they see the sponsor’s family at church too.

39. The Tribunal asked the applicant the reason that no evidence from family members had been provided. She said the sponsor’s family were refugees and there are language barriers. She said there had not been sufficient time to obtain translated evidence. The Tribunal accepted this evidence.

40. Following the hearing additional Statutory Declarations dated in August 2019 were provided. They included Statutory Declarations made by the sponsor’s father and by the applicant’s cousins. The declarants all referred to regularly spending time with the parties and provided persuasive reasons for their belief that the relationship is genuine and continuing. The Tribunal gave these Statutory Declarations some weight.

41. The applicant told the Tribunal that she and the sponsor spent their leisure time at home, watching movies or with friends. They have also taken a small trip with friends.

42. The applicant told the Tribunal that earlier this year she and the sponsor went to the United States to celebrate the sponsor’s birthday. Following the hearing evidence of travel and travel photos over several years was provided. This evidence included photos and travel documents showing the parties travelled to the United States together in January 2019.

43. Following the hearing the applicant provided copies of her and the sponsor’s tax returns for the year ended 30 June 2019. The returns show that they indicated that they were each other’s spouses during the whole of the financial year. 

44. The Tribunal noted the applicant’s frequent overseas travel and the sponsor’s less frequent overseas travel. The applicant told the Tribunal she returns to Thailand to see her widowed mother and also for medical treatment. Evidence of this medical treatment was provided.

45. The Tribunal accepted the parties’ written and oral evidence that they represent themselves to other people, including the Australian Tax Office, as being married to each other and that they engage in joint social activities at the time of this decision.

    Nature of persons’ commitment to each other

46. The Tribunal considered the nature of the persons’ commitment to each other 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 the relationship as long-term.

47. The applicant told the Tribunal that they plan to start a family at the end of the year after they have settled into their new home. She needs to undergo IVF treatment and will commence this as soon as possible. The sponsor gave similar evidence.

48. The applicant said the sponsor provides her with emotional support. She said when her visa was refused she wanted to give up because they had been waiting for such a long time  but the sponsor assured her that God would help them with the visa. She said he cheers her up when she is feeling discouraged.

49. The applicant told the Tribunal that if the visa is refused the sponsor has said they will sell their house and he will return to Thailand to live with her. The sponsor gave similar evidence.

50. The sponsor said he would be very sad if the visa is refused however he just wants to live with the applicant and he will go wherever she goes.

51. Following the hearing the applicant provided her superannuation statement in which she indicated that the sponsor is her sole beneficiary. The sponsor’s superannuation statement was also provided and showed he has nominated the applicant as his sole beneficiary.

    Matters raised by the delegate

52. The delegate referred to the sponsor’s telephone interview on 10 February 2017 during which he said the applicant had travelled to Thailand for two weeks but was then in Singapore spending time with a friend. He said she would spend the rest of her time in Singapore before returning to Australia on 13 February 2017. On 17 February 2017 the applicant said she spent the entire time away in January and February 2017 in Thailand and apart from stopovers, she did not travel to Singapore. The applicant said she and her mother had planned to travel to Singapore however her mother was unable to take time off work.  In a written statement dated 28 February 2017 made by the applicant she said the reason the sponsor told the Department she was in Singapore on 10 February 2017 was because she had advised him of her intention to travel to Singapore the previous night however she did not travel to Singapore because her mother fell sick at the airport in Thailand.

53. The applicant told the Tribunal that initially her mother was unable to take time off work and so they were not going to take their planned trip to Singapore. She said her mother’s circumstances changed and she was able to take time off work but the trip was put off again when she felt unwell at the airport. Evidence of the mother’s illness on 5 February 2017, prior to the planned trip, was provided. The applicant said that her mother’s illness was the reason they did not travel to Singapore. She said she mentioned her mother’s inability to take time off work because she felt under pressure when the Departmental officer questioned her and she panicked. 

54. During the sponsor’s telephone interview on 1 November 2017 he did not know when the applicant was due to return to Australia. He said she had lost her passport and needed to obtain a new passport in Thailand. On 19 December 2017 the Department contacted the applicant by telephone. During this telephone interview the applicant advised that she was due to fly back to Australia on 3 November 2017 but she was not permitted to leave Thailand because she left her passport in a taxi on the way to the airport. The Tribunal pointed out that the sponsor had advised the Department that she had lost her passport two days prior to her leaving it in the taxi. The applicant was unable to explain the reason for this discrepancy and attempted a number of times to challenge the date of the sponsor’s advice. The Tribunal informed the applicant that the telephone conversation between the sponsor and the Department was clearly recorded as having taken place on 1 November 2017.  

    Conclusion

55. The parties generally gave oral evidence at hearing in a forthright and credible manner. The Tribunal has concerns with respect to the applicant’s inability to explain the discrepancy in the evidence regarding the loss of her passport however does not see this issue as determinative of her overall credibility.

56. Despite its concerns, the Tribunal was satisfied that the applicant and the sponsor are in a genuine spousal relationship. The Tribunal placed weight on the financial aspects of the relationship and the nature of the parties’ commitment to each other. The parties both gave evidence that they see their future together and their relationship as a long term one.

57. Regarding whether the requirements of s.5F are met at the time of decision, the Tribunal decided:

    • the parties are married to each other under a marriage that is valid for the purposes of the Act;
    • they are living together;
    • they have a mutual commitment to a shared life as husband and wife to the exclusion of others; and
    •  that the relationship is genuine and continuing.

58. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant meets cl.801.221(2)(c).

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 801 visa.

    DECISION

1. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

   ·cl.801.221(2)(c) of Schedule 2 to the Regulations

   Christine Kannis
   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).