Pav (Migration)

Pav (Migration) [2020] AATA 5394 (15 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Taing Pav
CASE NUMBER:  1815207
DIBP REFERENCE(S):  BCC2015/2504372
MEMBER:Steven Griffiths
DATE:15 October 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:
·cl.801.221(2)(c) of Schedule 2 to the Regulations

Statement made on 15 October 2020 at 4.17pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – spouse – validly married – financial, household and social aspects of relationship – nature of commitment – parties’ physical health – adverse information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 801.221(2)(c)
CASE
He v MIBP [2017] FCAFC 206

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 Immigration on 15 May 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).
The applicant, Mr. Taing Pav, applied for the visa on 26 August 2015 on the basis of his relationship with his sponsor, Ms. Saoly Chorn. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (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 applicant did not satisfy cl.801.221 of the Schedule 2 to the Regulations because the applicant was not the spouse, as defined in s.5F of the Act, of the sponsor.
The applicant appeared before the Tribunal on 13 October 2020 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence, by telephone, from the sponsor and three others, Mr. Graham Brinkworth, Mr. Kath-Tong Ma Chav and Mr. Troy Ainslie. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Immigration file, the Tribunal file, additional information provided by the applicant before and within 7 days of the hearing, and the oral evidence from the Tribunal hearing.
ISSUE
The issue in the present case is whether the visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.
BACKGROUND OF THE EVIDENCE
Mr. Pav was born in Cambodia in 1978. His parents are deceased, and he has 3 brothers, born 1968, 1982 & 1986, all living in Cambodia. He has a daughter, born 2008, who lives with her mother in Cambodia. He arrived in Australia on 4 April 2015.
Ms. Chorn was born in Cambodia in 1969. Her parents, and a brother and sister, are deceased. She came to Australia in April 1983, has been married twice previously, from 1986 to 2003, with 2 sons and a daughter, born 1987, 1990 & 1998, and from June 2006 to January 2010. She became an Australian citizen by grant on 28 April 1994.
INFORMATION TO THE TRIBUNAL
Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-
Applicant statement, 23/5/18
Applicant wage payment slips, 6/3/18 to 15/5/18
Account deposit slips, 2/11/17, 8/2/18 & 17/5/18
Parties joint name bank account, 25/4/18 to 19/5/18
Joint names – energy accounts – 2018 & 2019
Fee reduction request
88 photos from 2015 to 2019
Letter of support, Mr. Kath-Tong Ma CHAU, 20/6/18
Letter of support, Mr. Sochenda MOM, 5/6/18
Letter of support, Mr. Troy AINSLIE, 6/6/18
Letter of support, Mr. Ny SEN, 7/6/18
Letter of support, Mr. Nguyen Vu CAO, 8/6/18
Parties joint name car registration, May 2018
Parties confirmation of employment, June 2018
Parties joint name residential tenancy agreement, November 2017
Marriage Certificate, 23/6/15
Applicant bank statement, 8/1/18 to 23/5/20
Parties joint name bank statement, 11/1/18 to 22/5/20
Sponsor Medical report – 2019 admissions
Joint names electricity and gas accounts, March, May, August, September 2020
Applicant rehabilitation report, August 2020, back and ankle injury
Joint names car registration, May 2020
Sponsor Management plan and Team care arrangement – Stroke in June 2019
April to September 2020 home rental payments
Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?
Clause 820.211(2)(b)(ii) requires that 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. The Tribunal accepts the documented evidence of the sponsor being an Australian citizen by grant from 28/4/94.
Whether the parties are in a spouse or de facto relationship
‘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 r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
At the time the visa application was made the visa applicant provided evidence of being married to the sponsor with an Australian Certificate of Marriage dated 23 June 2015.
The Tribunal has regard to the document and finds that the parties are married to each other at the time of the visa application and this decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).
Sections 376 Certificate issued by the Minister
The Tribunal informed the parties a delegate for the Minister of Home Affairs had issued, under Section 376 of the Migration Act 1958, a Certificate on 29 May 2018 confirming submissions had been received on the sincerity of the relationship and attacks on the sponsor by the applicant, noting the submissions were made on 6 May 2016.
The Tribunal noted that the applicant had been advised by the Department, of the submission on 12/3/17, determining it to be adverse information, and inviting comment, with the applicant responding on 25/2/17 and 23/5/18.
The Tribunal provided the parties with a short adjournment to discuss the Section 376 Certificate and submission of 6 May 2016, following which the parties confirmed the written statements made by the sponsor in February 2017 and May 2018 and that they wish the hearing to continue.
CLAIMS AND FINDINGS
Financial aspects of the relationship that must be considered include:-
(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 expense
The Tribunal determines from the documented and oral evidence of the parties, confirmed independently, that at the time of the visa application and this decision, the parties did not and do not have joint ownership of real estate or other major assets.
The Tribunal determines from the documented and oral evidence of the parties, confirmed independently, that at the time of the visa application and this decision, the parties did not and do not have any joint liabilities.
The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, none of the parties had or has a legal obligation with regard to the other.
The Tribunal accepts the documented and oral evidence of the applicant having been injured at his workplace in August 2019 and rehabilitating from his injury.
The Tribunal accepts the documented and oral evidence of the sponsor working for two short periods during the time of the parties relationship and marriage and not having worked for several years.
The Tribunal accepts the documented and oral evidence, confirmed independently by the parties, of the finances of the parties being operated from individual name bank accounts in to which their respective wage incomes were deposited and a joint name bank account in to which the parties transferred funds at the time of the visa application and determines this to represent, at the time of the visa application and this decision, the pooling of financial resources for major financial commitments and the sharing of day-today household expenses.
Nature of the household aspects that must be considered include:-
(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
The Tribunal accepts the photographic, documented and oral evidence of the parties of the sponsor having three adult children, living independently in South Australia, and the applicant’s daughter, born 2008, living in Cambodia.
The Tribunal accepts the oral evidence of the parties that the visa applicant does not have contact with his daughter as the mother of the child has prevented contact since the separation of the parents.
The Tribunal accepts the oral evidence of the parties that the adult children of the sponsor have a good relationship with their mother, but not so with the applicant, with the sponsor visiting her children and grandchildren regularly.
The Tribunal accepts the documented and oral evidence of the parties that the applicant is dealing with back and ankle injuries from a work place accident in 2019 which has resulted in him needing the assistance of the sponsor, while the sponsor suffered two strokes in June 2019, and the rehabilitation, supported by the applicant, has assisted her significantly.
The Tribunal accepts the photographic, documented and oral evidence of the parties living arrangements and determines, at the time of application and this decision, they have and do live together in a rented home which has been the residence of the sponsor for many years and the home of the applicant since he arrived in Australia.
The Tribunal accepts the documented, photographic and oral evidence, confirmed by the parties independently, on the roles each undertakes in the household, and determines, at the time of application and this decision, the parties share the responsibility for housework.
Social aspects of the relationship that must be considered include:-
(i)whether the persons represent themselves to other people as being married to 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
The Tribunal accepts the photographic, documented and oral evidence and determines at the time of application and this decision that the parties were married in Australia on 23 June 2015, with a small number of people present, while holding a celebration with a larger number of friends and family that evening, and represent themselves to other people at all times as being married to each other.
The Tribunal accepts the oral evidence of the parties that the eldest two children of the sponsor were not at the wedding as the daughter was heavily pregnant and the son was working in regional South Australia and unable to attend.
The Tribunal accepts the documented, photographic and oral evidence of family and friends of the parties and determines, at the time of application and this decision, the opinion of family, friends and acquaintances as being supportive of the relationship and marriage.
The Tribunal accepts the photographic, documented and oral evidence, confirmed by the parties independently, and determines, at the time of application and this decision, the parties plan and undertake joint social activities.
Nature of the commitment to each other that must be considered include:-
(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.
The Tribunal accepts the documented, photographic and oral evidence of the parties first being introduced, while living in different countries, in mid-2012, meeting physically on 11 August 2013 in Cambodia, committing to each other within days and holding an engagement ceremony in Cambodia on 18 August 2013 and marrying, in Australia, on 23 June 2015.
The Tribunal accepts the documented and oral evidence of the parties that the parties have lived together in Australia from 4 April 2015, while accepting that they were separated from October 2016 to early March 2017 during a period of disputes, while living together at all times since.
The Tribunal accepts the photographic, documented and oral evidence of the parties on the issues their lives together and determines, at the time of the visa application and this decision, that companionship and emotional support is provided by the parties to each other.
The Tribunal accepts the oral evidence of the parties and determines, at the time of application and this decision, they have had and continue to have an ongoing commitment to each other and see the relationship and marriage as being long-term.
The Tribunal notes the visa applicant stated that he loves the sponsor, helps her as much as he can, that she has been there for him when he needs help, that he has assisted her in recovering from her stroke and that he believes that being permitted to remain in Australia will bring in a period of their marriage being strengthened.
The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing.
The Tribunal accepts that the parties have been in a relationship since mid-2012, became engaged in 18 August 2013, married on 23 June 2015 and determines, at the time of the application and this decision, the parties live together.
Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant meets cl.801.221(2)(c).
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 801 visa.
DECISION
The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:
·cl.801.221(2)(c) of Schedule 2 to the Regulations
Steven Griffiths
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.15A Spouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act 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 married to 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).

[2020] AATA 5394

15 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies