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 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:
[email protected]
On 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’
As previously stated, a valid application for a Partner (Migrant) (Class BC) (Subclass 100) visa was made by the applicant(s).
The delegate determined that Clause 100.221 of Schedule 2 to the Regulations has not been met by the applicant on the date of their decision. It is noted by the Tribunal that the applicant following advice they provided to the Department and delegate that their relationship with their sponsor had ceased, they were provided with detailed information concerning the criteria that must be met to continue with the application. At that same time, they were given the opportunity to withdraw the application, which was not undertaken.
SPOUSE/DE FACTO (cl 100. 1(2)(b), (2A)(b))
Whether the parties are in a spouse or de facto relationship
Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl 100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen.
In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term. In the present case the applicant claims to have been the spouse of the sponsor, but the relationship has now ceased, and he has been the victim of family violence.
Clause 100.221(4)(b) provides an exception to the requirement that the relevant spouse or de facto relationship is continuing in cl 100.221(2) or (2A) and requires that the relationship between the applicant and the sponsor has ceased and the visa applicant has suffered family violence.
‘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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The delegate accepted that the sponsor and the primary applicant were genuinely married at the time of application. The Tribunal has no evidence before it to indicate this is not a legitimate assessment. It notes communications sent to the Tribunal indicating the applicant was seeking to divorce from the sponsor but had been unable to locate him. This was corroborated at the hearing. 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?
Prior to considering the claims of family violence, claimed to be the reason the spousal relationship is not ongoing, the Tribunal must consider whether the requirements of 100.221(2) or (2A) would have been met had the relationship not ceased.
In forming an opinion whether they are in a spousal relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects, the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A which is attached to this decision.
The Departmental records viewed by the Tribunal clearly indicate the both the visa applicant and the sponsor were over the age of 18 at the time of application. The Tribunal further notes the 4 secondary applicants are all adults ranging in ages from 25 up to 32. Their dates of birth have all been ascertained by reviewing the Department documentation.
The Tribunal on 31 August 2022 sent an invitation to the authorised address at the time for the applicant to provide information in support of their case. There have been multiple changes of authorised representative and requests for extensions of time in relation the Tribunal’s correspondence. The most recent change of representative was notified to the Tribunal on 14 July 2025 and once again a delay of proceedings was requested. The Tribunal denied the request as it has already agreed to delays in hearing proceedings and considers it unreasonable to agree to another delay. No substantial information has been received in support of the applicant’s case in the 3 years, post invitation on 31 August 2022.
Financial Aspects of the Relationship
In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, legal obligations and the sharing of daily household expenses.
No current information has been provided to the Tribunal to support the financial aspects of the relationship.
The Nature of the Household
The Tribunal has considered the nature of the household, including any joint responsibility for the care and support of children, the living arrangements of you and your sponsor, and any sharing of the responsibility for housework.
No current information has been provided to the Tribunal to support the nature of the household aspects of the relationship.
Social Aspects
In relation to the social aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following. Any written or photographic evidence from yourself, friends, colleagues and family indicating a socially recognised genuine and committed relationship.
No current information has been provided to the Tribunal to support the social aspects of the aspects of the relationship.
Nature of the Commitment
In relation to the nature of the persons’ commitment to each other, the Tribunal has considered the following which may indicate a substantial and genuine commitment between the sponsor and the applicant. The duration of the relationship, the amount of time cohabiting, the degree of companionship and emotional support the applicant and sponsor draw from each other, and whether they see the relationship as long-term.
No current information has been provided to the Tribunal to support the nature of the commitment aspects of the aspects of the relationship.
The Tribunal has determined there is little if any substantiated evidence to indicate there was a long- term commitment to the relationship prior to its apparent cessation in 2019. It accepts the assertion made that it is difficult to provide such information because of the separation of the parties and the claimed unknown whereabouts of the sponsor. It agrees this is further compounded by language and cultural issues. However as was discussed during the hearing a substantial amount of time has been allowed to ensure language could be accommodated with interpreters and legal support.
The Tribunal has carefully considered s 5F(2)(a)-(d), a mutual commitment to shared life to the exclusion of others; genuine and continuing relationship; and live together / not separately and apart on a permanent basis. It is not satisfied with the evidence provided that the sponsor and applicant now or at the time of application met these requirements.
Given these findings the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time of this decision
Therefore the applicant does not meet cl 100.221(2)(b) or 100.221(2A)(b).
Clause 100.221(4)(b) provides an exception to the requirement that the relevant spouse or de facto relationship is continuing in cl 100.221(2) or (2A) and requires that the relationship between the applicant and the sponsor has ceased and the visa applicant has suffered family violence.
The Tribunal acknowledges the applicant has made a claim of family violence in the form of financial abuse because her husband left her and did not provide financial assistance for herself or the 4 adult aged children. This claim was made to both the delegate and the Tribunal. The delegate did not consider this issue as it had determined the requirements of 5F were not met and therefore the legislative requirements of clause 100.221 could not be met. It is however noted that minimal evidence was provided to the Tribunal prior to or during the hearing or the delegate to substantiate the claimed violence.
The Tribunal has briefly turned its mind to it although not necessary given the findings the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time of this decision
Little substantive evidence has been provided to substantiate the vague claims. It finds there is no evidence of family violence other than a very brief Statutory Declaration, on a FORM 1410, made by the applicant on 10 October 2022 supported by only 1 piece of corroborating evidence. This is in the form of a Counsellor at the Aboriginal and Torres Strait Islander Women’s Shelter Indigenous Corporation. It was claimed but unsubstantiated she was a qualified Social Worker and eligible for registration with the Australian Association of Social Workers. This was corroborated at the hearing.
Therefore, the applicant does not meet cl 100.221(4)(d).
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
Secondary Applicants
As the primary applicant does not meet the legislative requirements specified in clause 100.221, the secondary applicants included in this application are unable to satisfy clause 100.321.
DECISION
The Tribunal affirms the decisions not to grant the applicants Partner (Migrant) (Class BC) visas.
Date of hearing: 16 July 2025
Representative for the Applicant Ms Penny Neawthong