Khotpanya (Migration) - [2025] ARTA 1511

KHOTPANYA (MIGRATION) [2025] ARTA 1511 (16 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Miss Rin Khotpanya
Mr Kitti Phosri
Miss Prapassorn Phosri
Miss Prapasri Phosri
Mr Natthakon Phosri
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2201102

Tribunal:Peter Emmerton
Place:Adelaide
Date: 16 July 2025
Decision:The Tribunal affirms the decisions not to grant the applicants Partner (Migrant) (Class BC) visas.

Statement made on 16 July 2025 at 1:50pm
CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – relationship ceased and claim of family violence – validly married – financial, household and social aspects of relationship and nature of commitment – limited information as at time of application, and no current information provided – vague claim of financial abuse – left with no financial assistance – members of family unit adult children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 100.221(2)(b), (2A)(b), (4)(b), 100.321
CASE
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 14 January 2022 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) Subclass 100 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 30 June 2015 on the basis of her relationship with her sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).
The criteria for the grant of a Subclass 100 visa are set out in Part 100 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.
The delegate in this case refused to grant the visa on the basis that they were not satisfied the claims of family violence under subclause 100.221(4)(b) could be met and considered, as the claims of the spousal relationship under subclause (2) or (2A) requires that the applicants, at the time of decision are the spouse or de facto partner other than for the family violence claimed.
The primary applicant appeared before the Tribunal, via Teams video on 16 July 2025 to give evidence and present arguments.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
The Tribunal hearing was conducted with the assistance of an interpreter in the English and Thai languages.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant was the subjected to family violence and would have continued in a spousal relationship had that not been the case, subsequently meeting the requirements to satisfy subclause 100.221.
The Tribunal has carefully read and considered all the evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Khotpanya (Migration)

Details

AGLC: Khotpanya (Migration) [2025] ARTA 1511
Case: [2025] ARTA 1511
Decision Date: 16 July 2025

CaseChat Overview and Summary

The case of Khotpanya (Migration) involved a partner visa applicant who was appealing against the decision to refuse her Partner (Migrant) (Class BC) visa, subclass 100. The applicant had lodged a valid application for a Partner (Provisional) (Class UF) (Subclass 309) visa and a Partner (Migrant) (Class BC) (Subclass 100) visa on the basis of being in a spousal relationship with an Australian citizen, Mr Chan Khotpanya. The applicant was granted the Partner (Provisional) (Class UF) (Subclass 309) visa on 9 December 2016. The legal issues in this case revolved around whether the applicant had been subjected to family violence and whether she would have continued in a spousal relationship had that not been the case, thereby satisfying the requirements of subclause 100.221.

The Tribunal examined the evidence presented to the delegate and the Department prior to their decision dated 14 January 2022. The Tribunal also considered all the evidence presented to it prior to this decision. The Tribunal found that the applicant had limited information at the time of her application and had not provided any current information. Additionally, the claim of financial abuse was vague and unsubstantiated. The Tribunal concluded that the decision under review should be affirmed.

The Tribunal's reasoning was based on the lack of evidence provided by the applicant to support her claims of family violence and the fact that the relationship had already ceased. The Tribunal noted that the applicant had not provided any current information about her relationship with the sponsor and that the sponsor had been living in Laos with another woman since March 2019. The Tribunal found that the applicant had not met the requirements for a Partner (Migrant) (Class BC) (Subclass 100) visa, and therefore affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant was the subjected to family violence and would have continued in a spousal relationship had that not been the case, subsequently meeting the requirements to satisfy subclause 100.221. The Tribunal has carefully read and considered all the evidence provided to the delegate and the Department prior to their decision dated 14 January 2022. The Tribunal has read and carefully considered all the evidence presented to it prior to this decision.Case history and claims up to the delegate’s decision The Tribunal notes and in part reproduces the substantial case history and claims leading up to the delegate’s decision and included in that decision dated 14 January 2022.‘You lodged a valid application for a Partner (Provisional) (Class UF) (Subclass 309) visa and a Partner (Migrant) (Class BC) (Subclass 100) visa on 30 June 2015 on the grounds of being in a spousal relationship with an Australian citizen, Mr Chan Khotpanya, who lodged a sponsorship in support of the application. You were granted a Partner (Provisional) (Class UF) (Subclass 309) visa on 9 December 2016. On 5 May 2019, the Department sent an invitation to apply for your Partner (Migrant) (Class BC) (Subclass 100) visa. The invitation was emailed to your nominated Migration Agent at the following address: (email address provided)On 11 July 2019, the Department attempted to contact you at the following numbers, but could not reach you. (5 mobile numbers provided)The Department also sent an email to P. Phostri, requesting that you contact us. The email was sent to: (email address provided)The department wrote to you on 30 September 2019, requesting that you complete a Form 929 - Change of contact and/or passport details. The request was emailed to your nominated Migration Agent at the following address:info@anzeducationcentre.comOn 18 October 2019 the department attempted to call your Incoming Passenger Card emergency contact person, (name and number provided). They claimed that your sponsor was now in Laos and that he has married a Laotian woman.On 22 October 2019, you presented yourself at our Northern Territory Office, with your niece and several children. You confirmed your contact details in person with our staff. You were also given a Form 956 - Appointment of a registered migration agent, legal practitioner or exempt person to complete, as you advised that you are no longer using a Migration Agent.On 23 October 2019, the aforementioned Migration Agent contacted the Department to advise that they have lost contact with you.On 24 October 2019, the Department received a Form 956a - Appointment or withdrawal of an authorised recipient. Your authorised recipient was then called and asked to arrange for you to provide the Department with an update of the current status of your relationship.A letter was then sent, advising that the Department has received information suggesting that you are no longer in a relationship with your Sponsor. The letter was emailed to your authorised recipient at: (email address provided)On 20 November 2019, the Department received an email from you, requesting an extension of time to respond to our request.On 21 November 2019, the Department sent an email to your authorised recipient (at email address provided), confirming that you had an extension of seven days to respond.On 22 November 2019, the Department received a letter from you, summarising the history and status of your relationship with your sponsor. You confirmed in your letter that your sponsor has stopped supporting you financially, gone to Laos and has started living with another woman. You further advised that you recognise you do not meet relationship breakdown provisions and asked how you should proceed (despite your options already being listed in our previous correspondence).On 28 September 2021, the Department attempted (unsuccessfully) to contact you and your authorised recipient at the following numbers: (2 mobile numbers provided)As it had been two years since you updated the department on the status of your relationship, a follow-up email was sent asking you to advise how you wishes to proceed with your application. You were provided with seven days to respond. On 2 October 2021, the Department received an email from (name and email address provided), advising that the requested response was sent to us on 22 November 2019. On 22 October 2021, the Department responded to this email, advising that requirements have not been appropriately met, and that the Department needs to know how you wish to proceed with this application within seven days. On 29 October 2021, an email was received from your newly appointed Migration Agent, (name provided), provided requested an extension of time to respond to the request for instructions. She also submitted a Form 956 - Appointment of a registered migration agent, legal practitioner or exempt person. On 1 November 2021, an email was sent to your Migration Agent, advising that the extension request would not be granted, as you have already had a sufficient amount of time to provide a response, indicating how you wish to proceed with this application. To date, the Department has not received any further information from you. We note that your sponsor has also remained offshore since 22 March 2019’

Decision

Reasons for decision

The Tribunal has read and carefully considered all the evidence presented to it prior to this decision.Case history and claims up to the delegate’s decision The Tribunal notes and in part reproduces the substantial case history and claims leading up to the delegate’s decision and included in that decision dated 14 January 2022.‘You lodged a valid application for a Partner (Provisional) (Class UF) (Subclass 309) visa and a Partner (Migrant) (Class BC) (Subclass 100) visa on 30 June 2015 on the grounds of being in a spousal relationship with an Australian citizen, Mr Chan Khotpanya, who lodged a sponsorship in support of the application. You were granted a Partner (Provisional) (Class UF) (Subclass 309) visa on 9 December 2016. On 5 May 2019, the Department sent an invitation to apply for your Partner (Migrant) (Class BC) (Subclass 100) visa. The invitation was emailed to your nominated Migration Agent at the following address: (email address provided)On 11 July 2019, the Department attempted to contact you at the following numbers, but could not reach you. (5 mobile numbers provided)The Department also sent an email to P. Phostri, requesting that you contact us. The email was sent to: (email address provided)The department wrote to you on 30 September 2019, requesting that you complete a Form 929 - Change of contact and/or passport details. The request was emailed to your nominated Migration Agent at the following address:info@anzeducationcentre.comOn 18 October 2019 the department attempted to call your Incoming Passenger Card emergency contact person, (name and number provided). They claimed that your sponsor was now in Laos and that he has married a Laotian woman.On 22 October 2019, you presented yourself at our Northern Territory Office, with your niece and several children. You confirmed your contact details in person with our staff. You were also given a Form 956 - Appointment of a registered migration agent, legal practitioner or exempt person to complete, as you advised that you are no longer using a Migration Agent.On 23 October 2019, the aforementioned Migration Agent contacted the Department to advise that they have lost contact with you.On 24 October 2019, the Department received a Form 956a - Appointment or withdrawal of an authorised recipient. Your authorised recipient was then called and asked to arrange for you to provide the Department with an update of the current status of your relationship.A letter was then sent, advising that the Department has received information suggesting that you are no longer in a relationship with your Sponsor. The letter was emailed to your authorised recipient at: (email address provided)On 20 November 2019, the Department received an email from you, requesting an extension of time to respond to our request.On 21 November 2019, the Department sent an email to your authorised recipient (at email address provided), confirming that you had an extension of seven days to respond.On 22 November 2019, the Department received a letter from you, summarising the history and status of your relationship with your sponsor. You confirmed in your letter that your sponsor has stopped supporting you financially, gone to Laos and has started living with another woman. You further advised that you recognise you do not meet relationship breakdown provisions and asked how you should proceed (despite your options already being listed in our previous correspondence).On 28 September 2021, the Department attempted (unsuccessfully) to contact you and your authorised recipient at the following numbers: (2 mobile numbers provided)As it had been two years since you updated the department on the status of your relationship, a follow-up email was sent asking you to advise how you wishes to proceed with your application. You were provided with seven days to respond. On 2 October 2021, the Department received an email from (name and email address provided), advising that the requested response was sent to us on 22 November 2019. On 22 October 2021, the Department responded to this email, advising that requirements have not been appropriately met, and that the Department needs to know how you wish to proceed with this application within seven days. On 29 October 2021, an email was received from your newly appointed Migration Agent, (name provided), provided requested an extension of time to respond to the request for instructions. She also submitted a Form 956 - Appointment of a registered migration agent, legal practitioner or exempt person. On 1 November 2021, an email was sent to your Migration Agent, advising that the extension request would not be granted, as you have already had a sufficient amount of time to provide a response, indicating how you wish to proceed with this application. To date, the Department has not received any further information from you. We note that your sponsor has also remained offshore since 22 March 2019’

Ratio Decidendi

Legal Principle Established

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