Moongdeewattanaroj (Migration) [2024] ARTA 108 (25 November 2024)
Decision and
Reasons for DecisionApplicant:Miss Maneerat Moongdeewattanaroj
Representative: Mr David Robert Jones
Respondent: Minister for Home Affairs
Tribunal Number: 2109927
Tribunal:Edward Howard
Date:25 November 2024
Place:Brisbane
Decision:The Tribunal affirms the decision not to grant the review applicant a Partner (Temporary) (Class UK) visa.
Statement made on 25 November 2024 at 11:19am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – financial aspects of the parties’ relationship do not support the parties being in a genuine and continuing relationship – victim of family violence – relationship ceased – parties did not have joint ownership of real estate or any other major assets – limited evidence as to the nature of their household and living arrangements – not satisfied that the review applicant had been in a de facto relationship for at least the period of 12 months ending immediately before the date of application – decision under review affirmedLEGISLATION
Migration Act 1958, ss 5CB, 65
Migration Regulations 1994, rr 1.09,2.03, Schedule 2, cls 820.211, 820.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the review applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review applicant applied for the visa on 8 July 2019 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.
The delegate refused to grant the visa on the basis that the review applicant did not satisfy cl 820.211(2).
The review applicant appeared before the Tribunal on 21 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The review applicant is Ms Maneerat Moongdeewattanaroj, a citizen of Thailand and the sponsor is Mr Craig Stuart Sommers, an Australian citizen.
The review applicant arrived in Australia on 14 September 2018. She was introduced to the sponsor by a Thai friend shortly after her arrival. Her evidence is that following their initial meeting the parties arranged to meet for coffee and then dinner. The relationship developed and according to the review applicant’s visa application form, they committed to a shared life together to the exclusion of all others on 25…
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CaseChat Overview and Summary
The court was required to determine whether the evidence provided by the parties demonstrated a genuine and continuing de facto relationship at the time of the visa application. This assessment was based on the financial, household, social, and commitment aspects of the relationship, as outlined in regulation 1.09A. The Tribunal considered whether the parties had a mutual commitment to a shared life, lived together on a permanent basis, and shared their lives to the exclusion of all others. The court also needed to address the limited documentary evidence provided by Ms. Moongdeewattanaroj and the additional evidence presented during the review process.
The Tribunal concluded that the evidence did not demonstrate a genuine and ongoing de facto relationship between Ms. Moongdeewattanaroj and Mr. Sommers. The relationship lacked significant financial ties, such as joint ownership of real estate or major assets, and the evidence did not convincingly show a high degree of companionship and emotional support. Additionally, the Tribunal found that the limited evidence regarding their household and living arrangements did not support the claim of a genuine relationship. The Tribunal did not need to address the issue of family violence as it was not satisfied that the parties were in a de facto relationship at the time of the visa application. Consequently, the Tribunal affirmed the delegate's decision to refuse the visa application.
The court's decision was to affirm the delegate's refusal of the Partner (Temporary) (Class UK) visa. The Tribunal's findings indicated that the relationship did not meet the criteria for a genuine and continuing de facto relationship as required by the Migration Regulations 1994. Therefore, Ms. Moongdeewattanaroj did not satisfy the necessary conditions for the visa application.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.ATTACHMENT - Extract from Migration Regulations 19941.09A 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).