Moongdeewattanaroj (Migration) - [2024] ARTA 108

Moongdeewattanaroj (Migration) [2024] ARTA 108 (25 November 2024)
Decision and
Reasons for Decision
Applicant: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 affirmed
LEGISLATION
Migration Act 1958, ss 5CB, 65
Migration Regulations 1994, rr 1.09,2.03, Schedule 2, cls 820.211, 820.221
CASES
Hasran v MIAC [2010] FCAFC 40

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…

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.

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Details

AGLC: Moongdeewattanaroj (Migration) [2024] ARTA 108
Case: [2024] ARTA 108
Decision Date: 25 November 2024

CaseChat Overview and Summary

The matter under consideration involves Ms. Maneerat Moongdeewattanaroj, a citizen of Thailand, who applied for a Partner (Temporary) (Class UK) visa, and her sponsor, Mr. Craig Stuart Sommers, an Australian citizen. The application was lodged on 8 July 2019, but the delegate subsequently refused the visa application on 21 July 2021. The review applicant appealed this decision to the Administrative Appeals Tribunal (now the Administrative Review Tribunal), which is tasked with affirming or overturning the delegate's decision. The central issue revolves around whether Ms. Moongdeewattanaroj and Mr. Sommers were in a genuine and ongoing de facto relationship at the time of the visa application, as required by the Migration Regulations 1994.

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

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 November 2018. On 8 July 2019, the review applicant lodged an Application for migration to Australia by a partner. The review applicant’s evidence is that the parties relationship broke down due to family violence and they separated in or around September/October 2020. On 21 July 2021, the delegate made a decision refusing the partner visa application. Subsequently, the review applicant lodged an Application for Review with the Administrative Appeals Tribunal (now the Administrative Review Tribunal) (the Tribunal).ISSUES AND LAW There is a two stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.09A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1] The Tribunal observes this to be a matter where the review applicant submitted limited documentary evidence in support of her visa application to the Department of Home Affairs and then furnished the Tribunal with further evidence that was unavailable to the primary decision maker.[1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal, having carefully considered all of the evidence, in relation to the nature of the commitment in the relationship, concludes that the degree of companionship and emotional support the parties drew from each other was minimal. The Tribunal is not satisfied that the parties’ had a mutual commitment to a shared life to the exclusion of all others, or that the nature of the parties’ commitment to each other was consistent with a genuine and continuing partner relationship. Overall Conclusions The Tribunal has considered separately and as a whole, the evidence before it regarding each of the prescribed matters under r. 1.09A, that is, the financial, household, social and commitment aspects of the relationship. In forming a view, the Tribunal is mindful of the authority in [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15]. Having carefully considered all the evidence and for the reasons above, the Tribunal is not satisfied that at the time of application, the parties had a mutual commitment to a shared life as a de facto couple to the exclusion of all others; that the relationship between them was genuine and continuing; and that they lived together and not separately or apart on a permanent basis. The Tribunal is therefore not satisfied the requirements of section 5CB(2) of the Act were met the time of the visa application. Given these findings, the Tribunal is not satisfied that at the time the visa application was made the parties were in a de facto partner relationship as defined in the Act. Therefore, the review applicant does not meet the criterion in cl.820.211(2)(a). The Tribunal notes the review applicant alleges she suffered family violence during the relationship. However, given the Tribunal’s conclusion in relation to cl.820.211(2)(a), there is no need for it to make a finding on the family violence issue at the time of decision. The relevant de facto relationship must have existed at the time of application before it can be determined that it has ceased on account of family violence. Accordingly, the Tribunal makes no finding in relation to whether family violence occurred in the review applicant’s case as it has found she does not satisfy the threshold criteria to be in a de facto partner relationship at the time of application. The Tribunal is therefore not satisfied that the parties’ relationship fulfilled the criteria contained in cl 820.211(2)(a) of the regulations at the time the visa application was made and at the time of this decision. Therefore, the Tribunal finds that the review applicant does not meet the requirements of cl 820.211(2) and cl 820.221(1). There is no evidence before the Tribunal that the review applicant meets the criteria on any other basis.

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).