Noeun (Migration)

[2024] AATA 3896

Noeun (Migration) [2024] AATA 3896 (23 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Raksmey Noeun
Miss Laksmy Sokhorn
Mr Visnu Sokhorn

REPRESENTATIVE:  Mr Ejaz Khan

CASE NUMBER:  2202368

HOME AFFAIRS REFERENCE(S):          BCC2019/5234490

MEMBER:Wan Shum

DATE:23 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

Statement made on 23 September 2024 at 1:59pm

CATCHWORDS 
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – not satisfied that parties have pooled their finances at the time of application – no corroborative evidence of their claim that they have been living together was provided – variation in answers given regarding the time spent together and with the applicant children – applicants are not in a genuine marital relationship – decision under review affirmed   

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant Partner (Temporary) (Class UK) visas to the applicants under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) made a combined application for the Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas on 18 October 2019 based on her relationship with Mr Narith Yim. At that time, Class UK contained Subclass 820 (Partner) and Class BS contained Subclass 801 (Partner). The criteria for the grant of a Subclass 820 visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), while the criteria for a Subclass 801 are set out in Part 801. For the grant of a Subclass 820 visa, one of the primary criteria is that the applicant is the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Act. Other members of the family unit who are applicants for the visa - in this case, the second and third named applicants - need satisfy only the secondary criteria.

3. The delegate refused to grant the Subclass 820 visas on 17 February 2022 because the delegate was not satisfied the applicant was the spouse or de facto partner of the sponsor. The Subclass 801 visas were also refused.

4. The applicants have sought review of the Subclass 820 visa refusals and were represented by the same migration agent who assisted with the visa application. They later appointed the representative named on the front page in August 2023.

5. The applicants appeared before the Tribunal on 19 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Narith Yim. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages. The representative was present throughout the Tribunal hearing.

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

   BACKGROUND

7. The applicant is a national of Cambodia born in August 1979. She travelled to Australia with her son, the third named applicant on 27 April 2018. Both entered Australia on visitor (Subclass 600) visas. The applicant’s daughter, the second named applicant, had come to Australia with the applicant’s then husband in January 2018, and they held student and student guardian visas respectively. The applicant’s son later applied for a student visa onshore which was granted in July 2018. The applicant travelled multiple times in and out of Australia on successive visitor visas and then made a combined application for the Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa on 18 October 2019, in Australia, after which she has not departed again. The applicant’s children, twins born in March 2005, were both included in the combined application.

8. In order to be granted the Partner (Temporary) (Class UK) visa, the applicant must satisfy the applicable visa criteria set out in Part 820 of Schedule 2 to the Regulations which includes cl 820.211. In this matter, the delegate found that the applicant did not satisfy clause 820.211(2)(a) and did not meet any of the alternate requirements so did not satisfy cl 820.221 of Schedule 2 to the Regulations.

9. Clause 820.211(2)(a) relevantly requires that the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen at time of application. In the present case, the applicant claims to be the spouse of Mr Narith Yim, who is an Australian citizen by grant. For the purposes of this application, he is the sponsor.

10. The sponsor was born in Cambodia in February 1977. He was previously married to Ms Soun Rany in December 1999, who he had sponsored for a partner visa in 2000. That marriage ended in divorce on 29 April 2019. There are 2 children of that relationship, born in 2002 and 2004. The sponsor became an Australian citizen in December 1998.

11. The applicant and sponsor claimed to have met in Cabramatta, a suburb of Sydney, on 18 May 2018, became engaged in May 2019 in Cambodia and were married on 8 September 2019 in Cabramatta.

12. The issue before the Tribunal is whether the parties are spouses as claimed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Whether the parties are spouses

13. ‘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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

14. Only parties that are validly married may be considered to meet the requirements of a married relationship. The parties provided a copy of a marriage certificate which reflects that the marriage took place on 8 September 2019 in Cabramatta and was registered with the NSW Registry of Births, Deaths and Marriages on the same day. It is recorded on the marriage certificate that both parties are divorced, and copies of their respective divorce certificates have been provided. The copy of the applicant’s judgment of divorce dated 29 April 2019 was provided with translation and reflects that the date the applicant applied for divorce was on 14 March 2019. The Court referred to citing a divorce agreement dated 16 December 2018 when deciding the application. The sponsor’s divorce order is dated 28 March 2019 to come into effect on 29 April 2019.

15. There is no evidence before the Tribunal that the marriage with the sponsor was not a valid marriage.

16. On the information before it, the Tribunal finds that 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?

17. In forming an opinion as to the other requirements of s 5F(2)(a)-(d), the Tribunal has considered the evidence under each of the circumstances set out in reg 1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under reg 1.15A(2), which is set out below.

18. When the application was under consideration, a relationship statement was provided along with various bills, rental agreement and a copy of each of their divorce orders.

19. On review, a statement setting out the reasons for seeking merits review was provided which refuted the delegate’s findings against each aspect of the relationship. Additional supporting material was provided and the Tribunal has considered the statement and evidence against each aspect of the relationship under the subheadings below.

20. During the hearing, when asked about their living situation and time spent together with the applicant’s children, the answers to some of the questions given varied between the applicants and the sponsor.

21. The variation in answers raises concerns as to the reliability of the evidence about the applicants’ actual living circumstances after arriving in Australia in 2018. The applicant’s evidence is that after she first arrived in Australia with her son, her children had lived with her then husband, and she had lived with a friend till she married her current husband, the sponsor. In the statement setting out reasons for seeking merits review, the applicant refers to having made five trips between Cambodia and Australia between her first entry on 27 April 2018 and her last arrival in Australia in August 2019, and records reflect that other than one overseas trip in April 2019, her children had remained in Australia with their father, her -ex-husband. She claimed that she needed to fly back to Cambodia for her business but elsewhere referred to only being permitted to stay for two-month periods in Australia.

22. The Tribunal has doubts however that she lived with a friend, who she indicated was named Sokvoeun Lang (by showing her phone) at an address she could not remember, upon her first arrival to Australia with her son instead of with her children and her then husband.

23. This is primarily because both the daughter and son said that they had all lived together as a family after they had arrived in Australia and their evidence about when they began living with the applicant differs from her evidence on this. The records reflect that her daughter and then husband arrived on 22 January 2018, while she had her son arrived on 27 April 2018. The daughter had stated that when she came to Australia, the applicant and her father were still together and that they had all lived together for the first couple of years. The son also said that after coming to Australia their mother, the applicant, lived with them. While the Tribunal accepts that the children, who would have been 13 at the time, may not have been informed of the state of their parent’s relationship at the time, the Tribunal considers that they would be in a position to recall whether or not their mother lived with them during her stays in Australia in 2018 and 2019.

24. Additionally, the Tribunal notes that the children were still young at the time and she was granted custody of them after the divorce was finalised in April 2019. In respect of her separation from her ex-husband, the applicant has given a variety of different dates as to when this occurred. The applicant had initially claimed at the hearing that she and her ex-husband had been separated sometime in 2016 or 2017 and then said it happened the first time she came to Australia and gave the date of 28 March 2018, although the Tribunal notes she did not come to Australia until 27 April 2018. In her relationship statement of 29 October 2021, she had said it was 3 months after her ex-husband came to Australia that she found out he had a girlfriend in Cambodia and then “our relationship deteriorated… beyond repair”.

25. In respect of their prior living arrangements, the applicant had said that she lived in a two bedroom home on McBurney Road in Cabramatta, with the sponsor and Thi Pich Kim since their marriage in 2019, and that they had moved to an address at Eurabbie Street, also in Cabramatta, which is a four bedroom home, in June this year as her children were going to be living with them.

26. The applicant gave evidence that the children had lived with their father in Cabramatta from their arrival up until June 2024 when they moved in with her to the Eurabbie Street address as she is now responsible for them as they are adults now.

27. Having regard to the copy of the judgment of divorce between the applicant and Sokhorn Bun dated 29 April 2019, the applicant was granted custody of the twins, but her ex-husband was responsible for the children’s education costs until they reached the age of maturity, which was indicated as being 18. The twins turned 18 on 9 March 2024. It thus appears that shortly after the twins turned 18 in March 2024, the children began living with the applicant at the Eurabbie Street address and the Tribunal understands from her evidence that this is what she meant by saying that is the law and she is now responsible for them.

28. Her claims about this is in contrast to the children’s evidence, with the daughter stating that she had started living at the McBurney Road address a couple of years ago. The son also said he had lived at McBurney Road, but described it as a three bedroom house. The rental agreement from March 2020 clearly states that the property is a 2 bedroom half house, and that a maximum of 3 people could live there at any one time. As there is a third tenant named on the agreement, Thi Pich Kim, who the applicant stated in her ‘reason for seeking merits review' is a 75 year old woman, the Tribunal has doubts about who was living at the McBurney Road address.

29. The Tribunal notes that the son’s Provisional 1 driver licence with expiry date 12 July 2025 has an address at Gilbert Street in Cabramatta and a change of address sticker appears on the back with the Eurabbie Street, Cabramatta address so it does not appear that he had ever declared his residential address as McBurney Road to Service NSW.

30. In addition to the above concerns, The Tribunal considered that their evidence at the hearing about time spent together raised significant doubts about their claimed relationship and living arrangements. The sponsor had said that the day before the hearing, on Sunday 18^th August, he and the applicant went to dinner with the children at Thai Basil restaurant at Canley Heights at around 7 or 8 pm. He said they ordered deep fried fish with mango sauce, beef and vegetable combination and fried rice.  However, the applicant had said that they did not go anywhere the day before the hearing as they were preparing for the hearing.

31. She had also explained that the children rarely join when they go out for dinner as they look after the takeaway shop on Sundays.

32. Finally, the applicant and the sponsor gave different evidence about the sponsor’s jobs since they claimed to have met and started a relationship. The applicant said that since they first met in 2018, the sponsor had always worked in construction/building, whereas the sponsor said that he had changed jobs a few times since 2018/19 and was working in the Northern Territory on a project at the time, then on Northconnex after returning to Sydney and during COVID-19, he began working as an Uber driver and had done so for between 3 to 4 years.

33. There were also some discrepancies about their trip to Melbourne to spend the New Year the sponsor recalled that there were 11 people altogether and he said that they were in Melbourne for 3 days, leaving Sydney on 28th December 2023 and were back on 2nd January 2024. The applicant had said that there were 10 people altogether and they were there for 5 days and 5 nights.

34. Following the hearing, in attempting to address the information outlined in the Tribunal’s invitation about the different responses given to aspects of their evidence, in respect of the children’s evidence it was submitted that it was not a “normal” experience for the teenage children to give evidence at a hearing and that they were 13 when they first arrived so did not know about their parents’ relationship. The Tribunal notes that the second named applicant had previously given evidence at a Tribunal hearing for an application for review of her biological father’s visa refusal. But in any case, this does not explain why the children had both said that they had been living at the McBurney Road address, but the son did not correctly state the number of rooms at that address and the applicant had said that the children only moved in to live with them in June 2024 at the Eurabbie Street address, which is a bigger house to accommodate them.

35. In respect of the McBurney Road address, a copy of an invoice for the purchase of a laptop in the applicant son’s name was provided for shipping to the address at McBurney Road. While the Tribunal accepts that he had a single item shipped to the McBurney Road address in March 2023, this does not alleviate concerns about whether he did not actually live there. 

36. The differences between the applicant and sponsor’s evidence were said to have been due to the sponsor’s memory being affected due to long work hours and sleep disturbances. The payslip issued by Redmen Services NSW Pty Ltd for the period 12 to 18 August 2024 – the week prior to the hearing - appears to reflect that he worked a total of 60.50 hours that week being a combination of 40 ordinary hours plus 20.50 hours of overtime. The sponsor’s doctor, Dr Thoa Van Le, relevantly stated that he was informed by the sponsor that he “felt overwhelmed during the [hearing] and spoke more than he intended”. The Tribunal does not consider that speaking “more than intended” explains the differences in their evidence, nor does it consider working around 60 hours in the week leading up to the hearing explains why he would have said that they went out for dinner the night before the hearing with the children when the applicant said that they had stayed at home.

37. In respect of the trip to Melbourne over the New Year 2024, it was submitted that the Airbnb accommodation had been initially booked for 10 people and the reason that the sponsor recalled that 11 people were there was because a friend of the applicant’s mother’s friend had come and only stayed for 2 days (which was never a part of the initial plan/booking). A copy of the booking was for an entire home/apartment with 6 beds for 10 people and has the dates of 28 December 2023 for check in and checking out on 2 January 2024. The Tribunal considers that their evidence about the dates of travel was essentially the same on this point and it is possible that another party who was not part of the initial booking had joined them for part of the stay, but it would have expected them to give the same answer about this. In respect of the sponsor working as an Uber driver, it was submitted that the applicant knew of this, but that the sponsor had asked her not to mention it. The Tribunal has doubts about this explanation as he mentioned it himself during the hearing. The Tribunal does not consider this to be a plausible reason for the applicant failing to mention when asked about the sponsor’s employment that he had been an Uber driver for 3 to 4 years and raises doubts about their claims to have be in a spouse relationship.

38. With the response, a Form 888 was provided from Morokath Kim, who claims to be the applicant’s best friend and had earlier provided a witness statement which the Tribunal had before it. Other Form 888s were provided from Sokhareaksmey Kong, a friend of the applicant’s niece, and Singha Kraypup Kaing Chhy, the nephew of the sponsor.

    Financial aspects of the relationship –

39. On the visa application form, the information entered in the section seeking details of the financial aspects of the relationship was that they have pooled their financial resources together. It was stated that they use a joint bank account, they share the household costs such as rent, food, water, electricity, phone, and gas bills and they shared the costs of their wedding and household furniture.

40. The applicant claimed in a document signed by both parties and dated 29 October 2021 entitled ‘Statement of relationship with current husband’ that they have “pooled all their financial resources together” and that they are “both working very hard to save enough money to put a deposit for our house”.

1. The evidence provided to the Department included statements for a joint bank account ending in #2534 held with Westpac bank and the statement for the period 30 July 2021 to 31 August 2021 shows debits which can be identified as payments to grocery stores, for petrol, to Vodafone, and credits are deposits from Centrelink, from ‘Iwaz Ali Sharifi’ and ATM deposits. It is not obvious from the transaction details, but it would seem unlikely that the applicant was in receipt of Centrelink payments at that time.

2. On review, the Tribunal received a typed statement dated 30 August 2022 signed by both parties but written from the applicant’s perspective, where they disputed that they had not provided sufficient evidence of joint finances referring to the joint bank account, tenancy and utility bills, and Vodafone account as “a strong written basis in showing our ongoing relationship” and advised that they currently have a joint Telstra phone bill account. They said they had asked for joint names on other bills, but this was not accommodated by the different service providers. However, it is not whose name appears on the bill, but how it is paid and their claims about this aspect that is relevant to an assessment of their finances. The Tribunal does not consider that having both their names on bills from different providers of itself sufficient to demonstrate joint finances – for example, if a bill shows both their names but is clearly for payment of goods or services to only one of the couple, and the bill is then paid by that individual, having both of their names on the bill would not of itself be demonstrative of shared finances. Rather, it tends to reflect that they may be attempting to manufacture evidence by providing one piece of evidence (ie a bill in joint names) to support a claim of shared finances, when the evidence of usage and payment suggests otherwise.

3. This is the case with the Vodafone bills which are addressed to the sponsor attention the applicant. However, the statement reflects that it is only for one mobile service plan, specifically ‘0433775838’, and elsewhere this has been identified as the applicant’s phone number (see copy of current tenancy agreement provided). There does not appear to by any reason why the sponsor’s name would appear on this statement other than to try and have both their names appearing on the same bill.

4. In examining hundreds of pages of bank account statements, bills and tax returns provided on review, the Tribunal notes the following.

5. In the statement of 30 August 2022, the applicant claims that “the lease agreement showed that the rent is going to be debited from bank account no. 072171 433474, mine and [the sponsor’s] joint bank account number”. The signed tenancy agreement provided reflects a commencement date from 7 March 2020 for 12 months, with $280 per week payable in advance by transfer to Century 21 Gala Real Estate Trust Account. However, the only bank account details set out in the tenancy agreement is that belonging to the real estate agent, Century 21 Gala, in the section setting out instructions for rent payment. Moreover, the additional statements for the joint Westpac bank account for the periods 31 December 2021 to 31 January 2022, 31 January 2022 to 28 February 2022 and 29 July to 31 August 2022 which were provided on review do not show any rental payments to Century 21 Gala. While these statements reflect various payments to grocery stores, fast food businesses and Telstra, it does not reflect any payments for rental or utilities. The statements are therefore not reflective of their claim in October 2021 and August 2022 to share the household costs such as rent, food, water, electricity, phone, and gas bills.

6. At that time, their names appeared on the tenancy agreement for the McBurney Road property along with Thi Pich Kim – who they claim is their co-tenant and an unrelated party. All three of their names also appear on the electricity bills, which records that the previous bill payments have been paid at Australia Post.

7. Having examined the sponsor’s bank statements for a separate account in his name held with Commonwealth Bank with account number ending in #7437 from 1 July 2022 to 30 September 2023, the Tribunal notes that there are transactions of $560 with the description “Century21 Gala” paid from this account on a fortnightly basis for the period from 1 July 2022 to 30 September 2022 which appear to be connected to rent for McBurney Road as, while the address does not appear in the transaction description, the amount matches the rent payable of $280 per week, so would amount to $560 if paid on a fortnightly basis. This reflects that the entire rent for the property is paid fortnightly from the sponsor’s account and given that rent is not paid from the joint account, it appears likely to have been paid by him prior to July 2022. It also appears that he has paid for the electricity from this account, as the bills issued by Energy Australia reflect that the amount for the previous billing period was made at Australia Post, for example, the bill issued on 28 February 2023 for the McBurney Road address refers to the amount of $147.97 being received on 7 December 2022 at Australia Post and matches the amount appearing on the sponsor’s bank account statements as a credit on 7 December 2022 at “POST CANLEY VALE”. The Tribunal notes that the statements reflect regular transfers into the account from Uber BV and salary payments from different payers including Highpoint, Walsh Group which reflect employment with these companies for several weeks or months. There are regular transfers to and from an account ending xx1851, but none to the joint account until late 2023/early 2024.

8. The current tenancy agreement for 12 months from May 2024 is for a house in Eurabbie Street which has 5 tenants named, the applicant, sponsor, Thi Pich Kim and the two applicant children. The weekly rent of $600 is payable in advance every 2 weeks to account name Century21 Gala Real Estate Trust account. The more recent Westpac Bank statements for the joint account reflect payments of $600 per fortnight to Century21 Gala Real Estate, although dating from 5 March 2024 which is two months prior to the tenancy commencing at Eurabbie Street, although a payment made on 24 April includes a reference to Eurabbie Street in the description of transaction.

9. Recorded on the rental agreement is the contact number for the sponsor: ‘0421 001 838’ and for the applicant: ‘0433 775 838’. The sponsor’s tax returns for 2023 and 2024 also reflect that he uses the 0421 001 838 number and for 2023 has his bank account details as account ending #2534 (the joint account with Westpac) but for 2024 has the account ending # 7437 (his individual account with the Commonwealth Bank). The applicant’s tax returns for 2023 and 2024 have the bank account details for account ending #2534 but does not include a mobile number.

10. In terms of other bills, the parties presented a number of Vodafone and Telstra tax invoices. While the bills are addressed to the applicant and the sponsor, or the sponsor attention the applicant, at the McBurney Road address until mid 2024, it appears that the bills associated with the number used by the applicant (‘0433 775 838’) are paid from the joint account, but those relating to the number used by the sponsor (‘0421 001 838’) are paid from his own account.

11. The tax invoices for the applicant’s number (‘0433 775 838’) for the period October 2021 to November 2022 were issued by Vodafone for an invoice total of around $100 and refer to ‘0433 775 838’ for a Vodafone infinite $55 super plan. The subsequent statements are for a total of over $200 but in respect of the same single phone number. It appears that the balance between the total and the plan amount is for the cost of the phone. The January 2022 direct debit of $100.52 matches with a transaction from the joint bank account.

12. The tax invoices for the sponsor’s number (‘0421 001 838’) are issued by Telstra and addressed to the sponsor at the McBurney Road address for ‘mobile plan extra large’. The October 2020 tax invoice records that payment will be made by direct debit by credit card. Subsequent bills for the first set reflect that the invoiced amounts match transactions appearing on the statements for the sponsor’s individual account with the Commonwealth bank ending #7437, with the 1 July 2023 to 30 September 2023 billed amounts of $72 being debited on or around 18^th of every month to ‘Telstra Services Melbourne Aus’. The 0421 001 838 number is recorded as the contact number for the sponsor on the tenancy agreement for the Eurabbie Street address which commenced in May 2024 and on his income tax returns. As the sponsor’s statements for the period provided show monthly payments to Telstra of around $68 increasing to $72, it appears that the sponsor pays for the mobile phone [phone] using his own account.

13. There is a second set of Telstra bills which are addressed to both parties at the McBurney Road address, and indicates it is for ‘2 mobile services’ listing the associated mobile numbers – ‘0484 194 331’ and ‘0456 381 838’ with statements issued on 29 January 2022 . Thos from 26 June 2023 to March 2024 are only in respect of the latter number. A handwritten invoice dated 16 February 2022 was also provided made out to the sponsor which had the applicant’s name in the description box, indicating that it was payment for an iPhone 13 in relation to the number ‘0456 381 838’.

14. The payments for the second set of Telstra bills, see for example, bill issued 29 June 2022, 29 July 2022 and 29 August 2022, match transactions on the statement from the joint account. The bill history chart reflects that there was a significant increase in amount billed in November 2021 to over $300, and for December 2021 and January 2022 the bill amount was just over $200. The tax invoice refers to the previous bill having been direct debited by credit card for $214.12. The amount payable for the 29 January 2022 statement of $216.70 due on 15 February 2022 is recorded as to be paid by direct debit from the nominated account and the joint account statements reflect that the amounts were paid from that account from that date onwards. Based on the amount payable for the mobile phone plan for phone number 0484 194 331 of $60, compared to $100 for 0456 381 838, it appears likely that the Telstra account was only for one phone number prior to the December 2021 - January 2022 billing period and likely would have been in respect of 0484 194 331. The Telstra bills reflecting two mobile phone plans invoiced on the same account commenced the month following the request for more information from the Department dated 27 October 2021. This number does not appear to belong to either the applicant or the sponsor.

15. In terms of joint assets, the parties claimed to have purchased a fish and chip shop together which settled on 1 June 2022 at 1/24 Lagonda Drive, Ingleburn NSW under the company ‘Nilo Per Pty Ltd’. The typed description on a set of documents relating to the company were that “Below are documents of Nilo Fer Pty Ltd, which is co-owned by [the applicant] and [the sponsor]. However, only [the sponsor]’s name appears on the documents because [the applicant] is not a permanent [sic] resident yet, therefore can’t own a business. But, [the applicant] currently operates the business on her own with the assistance of a few staff, while [the sponsor] Works somewhere”. The statement that the applicant cannot own a business does not appear to be correct. The Certificate of Registration of ‘Nilo Per Pty Ltd’ and business registration details, reflects that the sponsor was named as a director in March 2022 and the applicant was made a company director from November later that year. The other documents presented were for insurance, electricity bill, tenancy receipt, food safety certificates in the applicant’s name, letter from solicitor and purchase of car receipt for the business. During the hearing, the applicant said that she runs the fish and chip shop which is called Lagonda Takeaway. She said her niece works there and her children help out at the shop on weekends while the sponsor currently works at Redmen Group in construction on a full-time basis. Prior to opening the shop in 2022, she said she was not working in Australia – she had a business in Cambodia which she had claimed was the reason for travelling to and from Cambodia. It appears that the takeaway shop was purchased outright and the applicant has claimed that she used her money from the sale of property in Cambodia and the sponsor put in $40-50,000 for setting up the business. The joint bank account statements and the applicant’s own bank account statements reflect transfers to Nilo Fer Pty Ltd from late 2022 onwards but no set pattern or amount emerges.

16. In terms of their plans to save up for a house together, the sponsor owns a property in Adelaide, where his ex-wife and two children currently live. A copy of a statement for the period 1 July to 31 December 2023 for his investment home loan for a property was provided with the security address in Craigmore, South Australia and a certificate of title reflects that he is the registered proprietor of a property located in Craigmore. The loan statement reflects that he repays a set amount of $1,285 per fortnight and it appears the amount is paid from the joint account belonging to the sponsor and/or the applicant from Novem/December 2022. The parties did not claim that this was jointly owned and the applicant said that her husband pays the mortgage for that property.

17. There is no evidence of joint loans, although the applicant referred to a car loan at the hearing saying that it was for a car for the business for her use and paid by the sponsor. They both gave evidence that the childrens’ tuition fees are paid by the applicant.

18. The Tribunal was also provided with bank statements for an account held with ANZ ending #7936 in the applicant’s name with statements for the period May to July 2022 and Sept to November 2022 to March 2024 provided. The statements show that Morokath Kim transferred a total of $23,000 to the applicant in June 2022. There were two $10,000 transfers to Nilo Fer Pty Ltd that same month. There are some transactions from this account appearing under the withdrawal column and details reflect payment to various parties including the applicant herself, although as a number of these transactions can be matched to amounts appearing in the joint bank account statements, it appears that she was transferring money into the joint account on those occasions.

19. The parties appear to utilise multiple bank accounts, including individual accounts, and accepts that a married couple might have their own account and a joint account for their shared expenses.

20. However, while the Tribunal accepts that a Westpac bank account ending in #2534 was opened in both their names, it is unclear when the account was opened at the earliest dated statement provided consisted of the first four pages of a six page statement from 30 July 2021 to 31 August 2021 which reflects an existing opening balance on 30 July 2021. Nothing has been presented from October 2019, when the visa application was made. The July to August 2021 statement reflects some Centrelink payments into this account, as well as deposits made at ATMs and from ‘Iwaz Aliu Sharifi’, but the statements do not reflect any transactions for payment of rent or utilities. It is not until September 2022 that payments for rent appear on the joint bank account statements, after the applicant’s visa was refused and after their statement explaining the reasons for seeking merits review was made. The bank statements from 29 July 2022 until 29 October 2022 reflect regular deposits from the applicant and Morokath Kim, but none from the sponsor until 17 November 2022. The expenses associated with rent and utilities appear to have been paid from the sponsor’s account until September 2022 and they gave evidence that the rent and utility (water, electricity and gas) were paid by the sponsor. The receipts for rental payments from Century 21 Gala Real Estate are issued in both their names and Thi Pich Kim, but the corresponding payments to Century 21 Gala Real Estate Trust Account for the 22 January 2022 to March 2022 and August 2022 dates are from the sponsor’s individual account #7437, while the transactions from 1 September 2022 for rent appear on the bank account statements for the joint bank account.

21. This does not appear to corroborate their initial claims to share all of these expenses since their marriage in 2019.

22. The Tribunal accepts that they are the directors of a registered company which operates a fish and chip shop business since mid-2022. The Tribunal accepts that the applicant has been operating a business in Australia since the purchase of the business was settled and notes that she has provided her main source of income in the 2023 and 2024 tax returns as ‘managing director’. She claims to have not worked in Australia prior to 2022, while the sponsor has been earning a regular income working in construction, for different businesses, and as an Uber driver, although the applicant did not mention the latter.

23. The parties did not provide evidence which corroborates their claims to have pooled their finances at the time of application. Their oral evidence about rent and utilities is somewhat different to the stated claims, saying that the sponsor had paid for the rent and associated expenses with housing. Other than the existence of a joint bank account, for which the earliest statements were from 30 July 2021 and reflects a payment of a Vodafone bill which in turn was in respect of only one mobile number, there is little evidence that the finances were pooled at the time of application with no rent or utility payments appearing on the joint bank account statements until September 2022 when rental payments of $560 appear for the first time. Even then, the sponsor said he transfers money into the joint account for the rent and the applicant said that he paid the rent. The Tribunal suspects that the pattern of expenditure changed because the delegate had highlighted concerns about the financial aspects of their relationship. Noting this, while an explanation was given for a rent ledger provided for the McBurney Road address printed on 24 February 2020 which was in another party’s name, there is no evidence to corroborate a claim that the rent was paid jointly around that date. There is no evidence before the Tribunal to corroborate that they had joint finances when the visa application was made and despite having a joint account, it appears that they continue to separate finances with the rental payments in effect paid from the sponsor by transfers from his individual account and the applicant paying the tuition fees for her children.

    Nature of the household –

24. The parties claim that they have lived together at 2 different addresses in Sydney, Australia since their marriage in 2019. The applicant confirmed at the hearing that they began living together after they married.

25. The current address is claimed to be a house on Eurabbie Street, Cabramatta and the applicant said that they had lived there since June 2024, having moved there as they needed more rooms when her children began living with them. According to the signed agreement, the tenancy started from 11 May 2024. There are 5 tenants named on the agreement – the applicant, the sponsor, Thi Pich Kim and the two children. The applicant said that they had moved to this address in June 2024 as the children had started to live with them instead of their father, the applicant’s ex-husband, as she was now responsible for them so they needed more space. However, the children gave different evidence about when they started living with the applicant and sponsor, claiming that they started to live with them two years prior at the McBurney Road address.

1. The residential tenancy agreement provided for the McBurney Road address was made on 24 February 2020 and lists as tenants both the applicant and sponsor along with a third party, Thi Pich Kim. According to the copy provided, the 12 month tenancy started from 7 March 2020 for $280 per week payable by transfer to Century 21 Gala Real Estate Trust Account. The applicant stated at the hearing that since their marriage, they have lived at the McBurney Road address, which she described as a two-bedroom home – and that they were sharing with an older woman, Thi Pich Kim who had one of the bedrooms, while she and the sponsor had the other bedroom. As set out in the visa refusal decision, the tenancy ledger printed on 24 February 2020 was provided to the Department but has the name of ‘Luy Kim’ on it. The rent ledger in Luy Kim’s name covers the period from 8 July 2019 to 24 February 2020. The applicant explained in her statement setting out the reasons for seeking review that this person was Thi Pich Kim’s sister, who had moved out already and that they had provided the ledger to the Department by mistake. It was further claimed that they had moved into the address before they signed the lease agreement, which was not until March 2020, although there is no evidence to support this claim. The Tribunal notes that the evidence of addresses around the time of the marriage were as follows: the address of the sponsor on the marriage certificate was at Fisher Street in Cabramatta whilst the applicant’s address was an address in Cambodia; the rent ledger for the McBurney Road address is only in Luy Kim’s name and covers the period from 8 July 2019 to 24 February 2020; the rental receipts provided on review which list the applicant, sponsor and Thi Pich Kim were for the periods from 22 January 2022 to March 2022 and from 6 August 2022 to 16 September 2022.

2. The Tribunal accepts that both parties were recorded as tenants at these addresses from 24 February 2020, and there is some correspondence addressed to all the tenants after that date which include electricity bills, as well as correspondence addressed to them individually such as their individual bank accounts and the sponsor’s mobile phone bill issued by Telstra in his individual name, the earliest bill provided appears to have been issued for an account that commenced on 25 October 2020, reflects that he used this address from date onwards.

3. There are no children of the relationship, but the applicant has 2 children from her first marriage, who turned 18 this year and are included as dependents on this visa application and the sponsor has 2 children from his first marriage who were born in 2002 and 2004 and live with their mother, the sponsor’s ex-wife, in the property the sponsor owns in Adelaide. The applicant claimed that her children began to live with them from June 2024 in accordance with the judgment of divorce and custody, and had lived with their father since their arrival in Sydney in 2018 up until then. As noted above, the children had claimed to begun living with the applicant a couple of years prior. The Tribunal was not convinced by their explanation as to why their evidence differed from the applicant’s on this point.

4. The sponsor displayed some knowledge of the applicant’s children’s circumstances at the hearing but then gave evidence that they had all had dinner together at their favourite Thai restaurant the Sunday evening the day prior to the hearing. The applicant had said that they had not done anything the day before the hearing, and that they had eaten at the restaurant the Sunday 8 days prior to the hearing but it was just the two of them. She had stated that they rarely have dinner with the children as the children look after the shop on Sundays while she has a day off.

5. This variation in their answers to the same questions put to each of the applicant and sponsor at the hearing raises concerns about their claims about the nature of the household and other aspects of their relationship.

6. The applicant has only met the sponsor’s children in person on one occasion, which was on ANZAC day in 2024 when they claim to have travelled to Adelaide together.

7. When asked about the applicant children’s contact with their biological father during the hearing, it was confirmed that the applicant’s first husband lives in Cabramatta and they see him fairly often.  

8. While there are documents relating to rent that have both parties named as tenants along with a third person since February/March 2020, which suggests that they lived at the same address, this of itself is not conclusive evidence that they do live together as a couple and the variation in responses as to when the children began living with them and when they last shared a meal together as a family at their favourite restaurant gives rise to doubts about this aspect of their relationship.

   Social aspects of the relationship –

9. When the application was made, numerous photographs of the parties together and with others in Australia and Cambodia were provided. The photographs from their trip to Cambodia in March 2019 were of their engagement ceremony, when they travelled to Cambodia on the same day, and other photographs appear to have been taken when they married in Cabramatta, a suburb of Sydney, in September 2019.

10. They explained in their statement provided on review that the photographs were of them celebrating the Khmer New Year in Cambodia, which is generally celebrated in April and of their holiday in Thailand, as well as in Australia. While there are numerous photographs of them together, the Tribunal notes that they have submitted multiple photographs taken on the same day of the same occasion. For example, there are over 10 pages of photographs of their marriage (around two photographs per page), but 10 photographs are of them with the marriage celebrant and the other photographs reflect that approximately 7 others attended, and do not appear to include the applicant’s children. Their written explanation for the small wedding was because they do not have many friends and relatives in Australia, and also that they could not afford a big wedding. The Tribunal accepts that they were married based on their marriage certificate and has considered the explanation for the small number of people in attendance but notes that the sponsor said that he has family members living elsewhere in Australia, including his siblings and children, none of whom attended. The other photographs include multiple photographs of the couple at airports, of their travel together or picking up relatives from airports. The Tribunal accepts that they spent time together during the March 2019 trip with each other’s family/relatives as there are multiple photographs taken of an engagement ceremony and on the streets celebrating Khmer New Year. The Tribunal also accepts that they travelled to Thailand from Cambodia together in 2019. This appears to have been their only joint overseas travel. In terms of domestic travel, they claim to have travelled to Melbourne and Adelaide together.

11. The Tribunal has considered the witness statement and Form 888s from friends and the nephew of the sponsor, which contain general statements that they believe the parties are in a genuine relationship, although Ms Kong refers to the sponsor as the applicant’s fiancé and adds that they “deserve the opportunity to grow even more as they start their married life together” which does not acknowledge that they have been married for 5 years. The Tribunal considered whether to take evidence at the hearing from the declared witness, Morokath Kim who claims she is the applicant’s best friend, but notes that a witness statement was already provided and a further Form 888 was submitted with the response to the Tribunal’s invitation to comment and has taken into account her claims that they are in a genuine marriage. The Tribunal accepts that they are well known to each other, noting that there are regular money transfers that include ‘Morokath Kim’ in the description both into and out of the joint account and the applicant’s individual account for tens of thousands of dollars. It has placed some weight on Ms Kim’s evidence but also considers that she may have other motivations to support her best friend’s stay in Australia.

12. The sponsor has been declared as the applicant’s spouse in her Income Tax Returns for income years 2023 and 2024 and the applicant was declared as the sponsor’s spouse for the same income years.

13. The Tribunal notes that there is evidence that the parties have represented themselves to others as being married to each other since their marriage and has taken this into account, but that they did not present any evidence from the sponsor’s parents, siblings or children. They did not provide evidence of declaring each other as spouses to public institutions around that time but did so in their recent income tax returns.

    Nature of persons' commitment to each other –

14. The parties claim that they first met each other in May 2018 in the shopping precinct of Cabramatta, a suburb of Sydney, when the applicant was with her children during her first trip here from Cambodia. They claimed that they exchanged phone numbers and maintained contact and spent time together. They claimed to have become engaged when they travelled to Cambodia together in March 2019 and married in Cabramatta in September 2019. The applicant and sponsor have been married for nearly 5 years and claim to have been living together since their marriage. They claim to be in a genuine married relationship.

15. In the statement submitted on review, the applicant reiterates that they met in 2018 when she first came to Sydney and spent time together then and that on 13 January 2019, she visited Australia again and “socialised with the sponsor a great deal again”. The Tribunal accepts that the sponsor accompanied her to Cambodia on the same flight on 18 March 2019 and they became engaged there on 5 May 2019. The applicant next travelled to Australia on 18 August 2019, and they married in Sydney on 8 September 2019. It is claimed that they are very committed to each other based on the trips both had taken to spend time together but the Tribunal considers the question posed by the applicant as to “why would [she] make many trips to visit [the sponsor] in Australia at a great personal cost” overlooks the fact that both of the applicant’s children who were 13 and she was later granted custody of were in Australia at that time. The Tribunal accepts that the sponsor had travelled to Cambodia with her and has given some weight to this but notes that it is his birthplace and he travelled there without the applicant last year as well so that he could celebrate Khmer New Year. So, while the applicant claims that the trips they made back and forth between Australia and Cambodia shows that they are very committed to each other, the Tribunal considers that in the circumstances, their travel between the countries would not have been only to see and spend time with the other party.

16. Other circumstances – the parties are the named directors of ‘Nilo Per Pty Ltd’ which was registered as company on 17 March 2022 and the takeaway shop at Lagonda Drive in Ingleburn, a suburb of Sydney, was purchased in around 1 June 2022. The applicant claims that the purchase was financed through the sale of her property in Cambodia and the sponsor’s contribution of $40-50,000. The shop is managed by the applicant with the sponsor claiming to help out on occasion, but he has a paid, full-time job in construction and had also been working as an Uber driver since COVID-19. The Tribunal accepts that there is a company of which they are both directors, but a company can be registered by parties who are not in a personal relationship as well, so of itself is not strong evidence that they are a married couple.

17. At the time the visa application was made, the evidence presented is primarily in respect of the social aspects of the relationship which includes travel to Cambodia for their engagement which occurred a week after their divorces were finalised on 29 April 2019 by the Cambodian and Australian courts, and their marriage on 8 September 2019. The Tribunal has taken into account that there is social recognition of their relationship and accepts that they have presented themselves as a couple to a number of persons who have provided statements and declarations in support of their relationship. The Tribunal has also taken into account that there is evidence that they have been named as tenants, along with a third person, at two addresses in Cabramatta since March 2020 and have used the same address for correspondence after this date for mobile phone bills and bank account statements at one or other of the Cabramatta addresses. However, no corroborative evidence of their claim that they have been living together from the date of their marriage was provided.

18. While there is some evidence which would indicate that they are a married couple, of significant concern is the variation in answers given regarding the time spent together and with the applicant children. The volume of material provided does not overcome the concerns and doubts about the genuineness of their marriage. The supporting evidence about the circumstances of the relationship at the time of application was primarily limited to social aspects and the subsequent evidence does not convince the Tribunal otherwise. Having considered all the evidence and information, the Tribunal has formed the view that they are not in a genuine marital relationship but have entered a contrived relationship to enable all of the applicants to remain in Australia.

19. On the basis of the above the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time the visa application was made or the time of this decision.

20. Therefore, the applicant does not meet cl 820.211(2)(a). There is no information before the Tribunal that any of the alternative criteria in cl 820.211(7), 820.211(8), 820.211(9), are met. Given this, the applicant does not meet cl 820.211 and the Tribunal finds that the applicants do not satisfy the criteria for the grant of the visa.

    DECISION

21. The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

    Wan Shum
    Member