Pangpum (Migration)

[2017] AATA 486

Pangpum (Migration) [2017] AATA 486 (9 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Supanuch Pangpum

CASE NUMBER:  1505954

DIBP REFERENCE(S):  CLF2013/218009

MEMBER:Clyde Campbell

DATE:9 March 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·cl.820.211 of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations.

·r.2.03A

Statement made on 09 March 2017 at 7:22pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) –Satisfied all legislative requirements – Demonstrated committed de-facto relationship – Extensive supporting evidence provided since Department refusal

LEGISLATION
Migration Act 1958, ss 5CB, 5CB(2), 65
Migration Regulations 1994, Schedule 2 – cl 820.211(2), 820.221, r.1.09A, r.2.03A

CASES
Jayasinghe v MIMA [2006] FCA 1700

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 17 April 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 September 2013 on the basis of her relationship with her sponsor.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 and cl. 820.221 because the delegate was not satisfied the couple were in a de facto relationship for 12 months before the application was made. The delegate found that the applicant did not meet the requirements of r. 1.09A and r. 2.03A. The applicant seeks review of the delegate’s decision.

4. The applicant, Ms Supanuch Pangpum, appeared before the Tribunal on 28 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Chad Thomas Barrett, and a supporting witness, Ms Andronika Brown.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

7. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

8. Clause 820.211(2) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the de facto partner of the sponsor, who is an Australian citizen.

9. ‘De facto partner’ is defined in s.5CB of the Act and provides that 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).

10. 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).

    BACKGROUND

11. The applicant is a 35-year-old citizen of Thailand and from a previous relationship, has a 14-year-old biological daughter, who permanently resides with the applicant’s parents in Thailand.

12. The sponsor is a 40 year-old Australian Citizen and, from a previous married relationship, has shared access for his 4-year-old son.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether, at the time the partner visa application was made, and at the time of review, the applicant was, and continues to be, the de facto partner of the sponsor, and meets the requirements of s.5CB of the Migration Act and the requirements under cl.820.211 and cl. 820.221 of the Regulations. At issue also is whether the visa applicant meets the additional legislative requirement for the minimum length of the relationship, as prescribed in r. 2.03A of the Regulations.

    Are the parties in a de facto relationship?

14. The Tribunal has noted a paucity of evidence submitted at the time of application and observes that the delegate found there was insufficient evidence to conclude that the applicant was the de facto of the sponsor, as defined under s.5CB of the Act.

15. The Tribunal has given consideration to an extensive array of supporting documentary evidence[1], not available to the departmental delegate at the time of decision, which is relevant to the visa application at time of application and time of review.

    [1] T1 – f. 1-280

16. In assessing whether the applicant and sponsor have been in a de facto relationship, the Tribunal has considered the documentary evidence submitted with the primary application, additional documentary evidence that was provided to the Tribunal, and the oral evidence given during the review hearing. Having regard to the principles outlined in the decision of Jayasinghe v MIMA [2006] FCA 1700, when considering the circumstances of the relationship at the time of the visa application, the Tribunal has had regard to later events as they tend logically to show the existence of prior facts.

17. At the commencement of the review hearing, the Tribunal explained the process for the merits review and the prospective decisions that could be made at the end of the review process. The Tribunal explained the protocols for the hearing, and especially the manner in which the hearing would be conducted. The function and independence of the Tribunal were explained. The relevant sections of the provisions under the Migration Act and Migration Regulations for granting a Partner Visa (Class UK) (subclass 820) were referenced.

18. The applicant, sponsor and supporting witness advised the Tribunal that they understood the process for the hearing. Both the sponsor and interpreter indicated there were no difficulties with translation, dialect or comprehension. The Tribunal took evidence from the visa applicant, sponsor and supporting witness. For the record, the visa applicant and sponsor each provided their name, date of birth, place of birth and current residential address.

19. The Tribunal considered information relating to the applicant’s visa history and specific details were correlated with departmental movement records. The Tribunal notes that, on 5 September 2013, the applicant lodged a Partner (subclass 820 and subclass 801) visa application and was subsequently granted a Bridging (subclass 010) visa. At the time of review, the Tribunal notes that the applicant was the current holder of a Bridging (subclass 020) visa. The Tribunal also notes that, in Australia, the applicant is an onshore lawful non-citizen.

20. The Tribunal has considered the documentary evidence submitted with the primary application and additional evidence that is before the Tribunal. The Tribunal has also had the benefit of the parties’ oral evidence. The Tribunal found the applicant and the sponsor to be credible and truthful witnesses.

21. The Tribunal has given consideration to the additional submissions by the parties at the time of review, and notes the particulars of their relationship development[2]. The Tribunal has also given consideration to additional individual submissions from friends describing the development of the couple’s relationship.

    [2] T1. f. 255 – 258

22. The Tribunal accepts that the parties commenced with an online relationship on 6 June 2012 and, within a short period, they formed a committed and exclusive relationship from 16 August 2012. The Tribunal accepts that the parties have cohabited in a de facto relationship for more than four years.

23. The Tribunal accepts that the parties began living together in Australia from December 2012 and have established a joint household, sharing domestic responsibilities. The Tribunal also accepts that the parties jointly share responsibilities for the care and support of the sponsor’s child and the applicant’s child.

24. The Tribunal accepts that at the time of review, the quantum of cogent and relevant evidence submitted in support of the couple’s spousal relationship exceeds that available to the decision-maker at the time of application.

    The financial aspects of the relationship

25. The parties and witness provided free flowing, consistent evidence to the Tribunal about their financial affairs. The Tribunal is satisfied that there is substantial intermingling of the parties’ finances, commencing from 16 August 2012. Transactions from individual and joint accounts corroborate this evidence.

26. The Tribunal accepts that the parties share financial resources and opened a joint bank account on 11 November 2012. The Tribunal accepts that the applicant operates a small business, with the financial and operational support of his partner. The Tribunal accepts that the parties both contribute to their living arrangements and expenses. The parties submitted to the Tribunal a number of documents demonstrating the pooling of resources and the sharing of household expenses. The Tribunal accepts that the parties further undertook joint legal obligations through various leases of different properties throughout the course of their relationship and taking out joint insurance policies.

27. After careful consideration of the evidence, the Tribunal is satisfied that the applicant and sponsor had linked their finances in a very substantial fashion at the time of the visa application, and continue to do so at the time of review. Accordingly, the Tribunal has placed high weight upon the evidence in support of the financial aspects of the relationship.

    The nature of the household

28. The Tribunal accepts the parties have been residing together in Australia since December 2012, and from this date the applicant commenced a parental relationship with the sponsor’s child. The Tribunal notes that, during the sponsor’s trip to Thailand in October 2012, he met with and cared for the applicant’s biological daughter. Personal statements and declarations were provided to support this claim.

29. At time of review, the Tribunal has had before it considerable additional evidence on the parties’ living arrangements which confirms that they have been living together as a couple, at the current residential address. The Tribunal is satisfied that the parties have established a household together since committing to a de facto relationship.

30. The Tribunal accepts that the parties have assumed joint responsibility for the care of their two children and that both children appear to have benefited from the secure family unit that the applicant and sponsor have created for them.

31. Both parties and supporting witnesses gave detailed and consistent evidence about shared household arrangements, evidenced by joint leases, the descriptions of their joint addresses on correspondence, and various witness statements. The Tribunal accepts this evidence. After careful consideration, the Tribunal places high weight upon the evidence in support of the nature of the household regarding the relationship between the applicant and sponsor, both at the time of application and the time of this decision.

    The social aspects of the relationship

32. The Tribunal notes that, at the time of application, the parties submitted to the Department very limited information in support of their relationship. Extensive documentary and oral supporting evidence from family and friends is before the Tribunal at time of review to corroborate that the couple presented themselves to others as de facto partners in an ongoing, genuine, committed relationship.  The Tribunal is satisfied that the parties hold themselves out, and are recognised, as de facto partners at the time of application and time of decision.

33. The additional statements and declarations from supporting witnesses, family, and friends, lead the Tribunal to accept that the applicant and sponsor are well known to the witnesses and each has been in the physical presence of the couple, and communicated with them on a regular basis. The Tribunal notes the collective opinion and the cogent reasons given by all witnesses for why they believe the applicant and sponsor are in committed, genuine long term relationship. The Tribunal places considerable weight upon the evidence from the couple’s family members and friends indicating their acceptance of the relationship and verifying the genuineness of the couple’s relationship.

34. The Tribunal has given consideration to the numerous photos of the couple in public settings; evidence of the sponsor paying for the applicant’s and her daughters various bills; and evidence of the couple representing themselves to various organisations and groups as a de facto partnership. The Tribunal accepts that there is substantial corroborative evidence suggesting that the couple are in a genuine de facto relationship, jointly parenting their respective children.

35. After careful consideration of the relevant information before it, the Tribunal places high weight on the evidence in support of the social aspects of the relationship, both at time of application and time of decision.

    The nature of the persons' commitment to each other

36. Documentary evidence submitted at review as well as the oral evidence of the parties and supporting witness at hearing, leads the Tribunal to conclude that the parties have a strong commitment to a long-term relationship and continue to draw companionship and emotional support from each other.

37. The applicant and sponsor informed the Tribunal they had regularly discussed their long-term future together as a couple and their plans for the future included establishing a stable and cohesive environment for the parties and their children; providing ongoing family support for the sponsor’s mother; jointly developing a small business; having children together; jointly purchasing a residential property; and getting married in 2016 , with family celebrations in Australia and Thailand.

38. Both the applicant and sponsor gave oral evidence strongly indicating they draw companionship and emotional support from each other, with their relationship growing stronger over the past four years as a de facto couple. Individual statements from the parties confirm that the couple support one another through personal challenges. Both members of the couple gave oral evidence to the Tribunal as to the importance of each other in their lives and their hopes to enjoy a happy future together. The Tribunal notes that the applicant has provided unwavering support for her partner through his family law matters, the death of his grandmother and with the co-parenting of his son. The Tribunal also notes the sponsor’s reciprocal support for the applicant and her daughter by providing educational, financial and emotional assistance.

39. The Tribunal finds there is consistent and credible evidence form supporting witnesses and  third parties attesting to their belief that the parties’ relationship is a genuine one. There is photographic evidence before the Tribunal of the couple undertaking joint social activities. At hearing, the Tribunal has also been provided with social media evidence, to authenticate that the couple identify to others as being in a genuine and continuing de facto relationship. The Tribunal accepts that the parties represent themselves to others as being in a de facto relationship and that their friends, relatives and acquaintances believe the relationship to be genuine and for the long term.

40. The Tribunal accepts that the parties had been living together for a period exceeding four years and have not registered their relationship. The Tribunal accepts that they draw companionship and emotional support from each other. The Tribunal accepts that they have made plans for their future together, including marriage. The Tribunal accepts that they view the relationship as a long-term partnership and are both deeply committed to one another.

41. Having regard to all the circumstances of the relationship and the evidence before it, the Tribunal finds that, at the time the partner visa application was made, and at the time of review, the applicant and the sponsor had a mutual commitment to a shared life and were in an exclusive de facto relationship. The Tribunal is satisfied the parties’ de facto relationship is genuine and continuing and that the parties are not living separately and apart on a permanent basis.

42. On the basis of the above, the Tribunal is satisfied the applicant is the de-facto partner of the sponsor and meets the requirements of s.5CB(2) of the Act and subclauses 820.211 and 820.221 of the Regulations, at the time of visa application and time of decision.

    Are the additional criteria for a de facto relationship met?

43. The Tribunal acknowledges that when the application was made, the parties had not registered their marriage and claimed to be in a de facto relationship. As such, they must meet the additional criteria for a de facto relationship.

44. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. These are: that the couple are both at least 18 years of age; and with limited exceptions, that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship existed for 12 months prior to the application does not apply in certain circumstances where the sponsor is or was a humanitarian visa holder, or for applications made on or after 9 November 2009, where the  de facto relationship has been registered under a relevant State or Territory law: r.2.03(4), (5).

45. There is nothing before the Tribunal to indicate that the sponsor is or was a humanitarian visa holder or that the relationship is registered under a relevant State or Territory law.

46. The couple advised the Tribunal that their online relationship started on 6 June 2012. The parties and supporting witness evidence to the Tribunal is that, from 16 August 2012 they lived together and, only occasionally lived apart from each other, due to work and travel commitments. The Tribunal observes that the parties celebrate 16 August as their relationship anniversary and perceive it as a date when the relationship commenced. Whilst the Tribunal is mindful that the applicant stated on her visa application form that their relationship commenced in August 2012, the individual and cumulative evidence available at review, powerfully suggests to the Tribunal that, from 16 August 2012, the parties formed a mutual commitment to a de facto relationship and commenced an exclusive partnership.

47. The Tribunal has found the parties to be credible. The Tribunal is satisfied that, on balance, the relationship commenced on 16 August 2012 and therefore has been in existence for 12 months before the partner visa application was made on 5 September 2013.

48. For these reasons, the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A, and the requirements of r. 1.09A of the Regulations under the provisions of s. 5CB(2) of the Act.

    Conclusion

49. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

50. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·cl.820.211 of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations.

    ·r.2.03A

    Clyde Campbell
    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).