LerthiranWorachot (Migration)

[2018] AATA 4376

LerthiranWorachot (Migration) [2018] AATA 4376 (24 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Teerawi LerthiranWorachot

CASE NUMBER:  1701900

DIBP REFERENCE(S):  BCC2014/3592643

MEMBER:Helena Claringbold

DATE:24 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 24 September 2018 at 7:33am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner(Temporary)) – insufficient evidence of a relationship – de facto relationship has ceased – sponsorship withdrawn – sponsor in another relationship – no joint assets – no evidence has been provided about the parties’ household– previously undertook some social activity together – decision under review affirmed

PRACTICE AND PROCEDURE – applicant requested decision made on review

LEGISLATION
Migration Act 1958 (Cth), ss 5CB
Migration Regulations 1994 (Cth), r 1.09A Schedule 2 cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 31 December 2014, Mr Teerawi LerthiranWorachot, the applicant, applied for a Partner (Temporary) (Class UK) visa. The application was made on the basis of his de facto relationship with Mr Shane Ian Jackson, the sponsor.

2. On 16 January 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant and the sponsor were in a de facto relationship. As a result the applicant did not meet cl.820.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act).  This is a review of the delegate’s decision.

3. The Tribunal invited the applicant to a Tribunal hearing set down for 18 September 2018, to give evidence and present arguments. The applicant provided the Tribunal with a copy of the delegate’s decision record. On 14 September 2018, the applicant advised the Tribunal that he would not be attending the Tribunal hearing of 18 September 2018.  He requested that the Tribunal make a decision on the papers.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence, individually and as a whole, in the Departmental of Immigration and Border Protection’s case file and the Tribunal’s case files and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the applicant is the de facto partner of the sponsor as defined in s.5CB of the Migration Act 1958 (the Act).

   BACKGROUND ON THE EVIDENCE

7. In 1982 the applicant was born in Bangkok, Thailand. His father is deceased.  His mother and two siblings live in Thailand. He entered Australia in 2006, as the holder of a student visa. Since that time the applicant has had multiple student visas granted to him. The applicant returned to Thailand in 2010, 2011, 2012 and 2014.

8. In 1979 the sponsor was born in Australia.  He is an Australian by birth.  His parents and two siblings live in Australia. On 17 December 2001, the sponsor married Ms Lucinda Jackson.  On 1 September 2013, the sponsor and Ms Jackson’s relationship ended. There are five children from this relationship who live in Australia.

9. On 10 October 2012, the parties met. On 12 August 2013, the parties began living together. On 14 February 2014, the parties committed to a shared life to the exclusion of all others.

10. As detailed in the delegate’s decision record, on 7 March 2016, the sponsor advised the Department that the parties had separated.  On 1 April 2016, he withdrew his sponsorship for the partner visa application. On 31 May 2016, he reinstated his sponsorship for the partner visa application.  On 17 November 2016, the sponsor withdrew sponsorship for the partner visa application.  

    Is the applicant the de facto partner of an eligible citizen?

11. The Tribunal is satisfied that the sponsor, at the time of visa application and decision, was an Australian citizen who had turned 18. 

    Are the parties in a de facto relationship?

12. As the parties are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a spouse relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. 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).

13. In forming an opinion whether they are in a de facto 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) which is attached to this decision.

    CLAIMS AND FINDINGS

14. About the parties’ financial matters, at the time of application the parties stated that they used their joint bank account to deposit their salary and pay various expenses. They provided bank statements for periods of time in 2013 and 2014.  Since that time, the parties have not provided any evidence about their financial matters.  On that basis, the Tribunal does not accept that the parties have any joint ownership of real estate or other major assets or any joint liabilities or owe any legal obligation in respect of the other.  The Tribunal finds that the parties do not pool their financial resources or share day to day household expenses.

15. In the parties’ household, at the time of application the applicant stated that the parties lived together and that the applicant provided assistance to the sponsor’s children from a previous relationship. At the time of this decision, the evidence from the applicant is that, the sponsor has been living in Brisbane, but will be returning to Sydney when his work contract finishes and the applicant lives in Sydney. In the applicant’s timeline provided to the Tribunal he details the parties visiting each other. No evidence has been provided about the parties’ household. Because of evidence to the contrary, the Tribunal does not accept that the parties share joint responsibility for the care and support of children or that they share the responsibility for housework.

16. Regarding the social aspect of the parties’ relationship, the Tribunal accepts that the parties presented and were seen as de facto partners. Third party statements detail the parties’ relationship and their social activities.  Other evidence is that the parties travelled together. Photographic evidence depicts the parties together and with others. The Tribunal finds that the parties previously undertook some social activity together. The Tribunal considered the chat records provided by the applicant.  In these records it is apparent that the parties continued to communicate. However, the Tribunal has not been provided any evidence about the parties’ activities social activities at the time of decision. As a result the Tribunal does not accept that the parties undertake or plan to undertake social activities together. 

17. Concerning the parties’ commitment, at the time of application the applicant stated that the parties began living together in August 2013 and started their de facto relationship in February 2014. They provided evidence of their commitment ceremonies in Australia and Thailand. At the time of this decision, the evidence as detailed in the delegate’s decision record is that the sponsor withdrew his sponsorship for the partner visa on 17 November 2016 and at that time stated that the parties’ relationship ceased six months prior.  On 14 September 2018, the applicant advised the Tribunal of the following, the sponsor would not attend the Tribunal hearing of 18 September 2018 to support the applicant’s partner visa application. The sponsor has been in a relationship with another person in Brisbane since February 2016 and that relationship ceased. He included photographs of the sponsor with that person. He stated that the sponsor told him that his relationship with the other person ceased and he would be moving back to Sydney when his contract work finished.

18. The applicant provided some evidence, to support the parties’ de facto relationship, to the Department at the time of application in December 2014 and during the visa processing until January 2015. There is no documentary or corroborative evidence before the Tribunal since January 2015 onwards concerning the financial aspects of the parties’ relationship, the nature of any household, or the nature of their commitment to each other. The Tribunal accepts that the parties have exchanged communication via a chat website after that time.  However it does not accept that this communication demonstrates that the parties have undertaken or plant social activities together.

19. Regardless of when the parties separated, the evidence is that the sponsor withdrew his sponsorship for the partner visa in November 2016 and that the parties’ relationship ceased six months prior to that time.  The evidence from the applicant is that, the sponsor was in a partner relationship with another person since February 2016. Due to the evidence that the parties’ relationship ceased and due to the lack of evidence to the contrary, the Tribunal is not satisfied that at the time of decision the parties are in a de facto relationship.  Ultimately, this is because the parties have not, since January 2015, provided to the Tribunal any independent evidence concerning the financial aspects of their relationship, the nature of any household, other than chat messages and images, any social aspects of their relationship, or the nature of their commitment to each other.

20. The Tribunal does not accept that the parties are committed to each other or that they provide each other with companionship and emotional support or that they see the relationship as long-term.

21. Having considered the evidence provided at the time of application and the applicant’s evidence to the Tribunal, it is apparent that the parties are not in a genuine de facto relationship.

22. Even though the applicant stated that he is trying to keep the sponsor with him, there is no evidence from the sponsor that he continues or intends to continue in a de facto relationship with the applicant. The evidence is that the sponsor has withdrawn sponsorship for the partner visa application and has been in a relationship with another person. Due to the lack of evidence to the contrary, the Tribunal is satisfied that the parties’ relationship has broken down, therefore the applicant is no longer the de facto partner of his sponsor and is unable to satisfy cl.820.221(1) to the Regulations.

23. The Tribunal, on the evidence is not satisfied that at the time of this decision, the parties have a mutual commitment to a shared life as de facto partners to the exclusion of all others, that the relationship is genuine and continuing and that the couple live together, or do not live separately and apart on a permanent basis.

24. There is no evidence before the Tribunal that the applicant satisfies the requirements of any of the alternate subclauses.

25. Given these findings the Tribunal is not satisfied that at the time of this decision the parties were in a de facto relationship.

26. Therefore the applicant does not meet cl.820.221(1) and cl.820.221(3) to the Regulations.

27. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

28. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Helena Claringbold              
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).