Pharikan (Migration)

[2020] AATA 2547

Pharikan (Migration) [2020] AATA 2547 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Phinit Pharikan

CASE NUMBER:  1904945

DIBP REFERENCE(S):  CLF2011/3830 CLF2011/38380

MEMBER:Moira Brophy

DATE:27 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 27 May 2020 at 12:23pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Federal Court remittal – genuine and continuing relationship – financial, household and social aspects of relationship – nature of commitment – confused and unconvincing evidence – lack of knowledge of finances and family relationships – conflicting evidence of activities on morning of hearing – relationship entered into for migration outcome – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 801.221

CASE
He v MIBP [2017] FCAFC 206

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 Immigration on 18 December 2014 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 10 March 2011 on the basis of his relationship with his sponsor. 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.

3. A Subclass 820 visa was granted on 14 December 2012.

4. On 18 December 2014 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the delegate was not satisfied the applicant was in a genuine and continuing relationship with the sponsor.

5. The applicant sought review of the delegate's decision and the matter was heard and determined by the Administrative Appeals Tribunal (differently constituted) on 14 January 2016. The Tribunal affirmed the decision under review. That decision was appealed by the applicant and on 8 June 2018 the matter was dismissed by the Federal Circuit Court. The applicant then appealed to the Federal Court and on 31 January 2019 the Federal Court remitted the application.

6. The applicant, Mr Phinit Pharikan, appeared before the Tribunal on 25 July 2019, on 18 September 2019 and on 26 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Deng Baramy, and from KetKanok Horrell, Phet SivileyKhan, Hathaiporn Pharikan, Bouthorn Sydavong and Champa Baramy. The Tribunal hearing was conducted with the assistance of an interpreter in the Lao and Thai and English languages.

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

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

   Background

9. The applicant was born on 15 September 1961 in Thailand.  He was previously married to Chonthiprang Jaiphong and they have two daughters, born in 1986 and 1988. Their relationship commenced in 1984 and they lived as de facto partners until the applicant came to Australia in the period from August 1988 to June 1994 on a student visa. During this period, Ms Jaiphong married and was sponsored to Australia by her then partner. She and the applicant met again, and they were married in Thailand in 2005. The applicant then returned to Australia on 7 May 2006 on a 309 visa sponsored by Ms Jaiphong. At the time of lodging the present application, he said he was still legally married to Ms Jaiphong and he intended to divorce soon. He stated he had moved out of the marital home he shared with Ms Jaiphong in May 2008. A copy of the divorce papers provided at the request of the Tribunal indicated the parties had divorced on 11 March 2013. His father and an older sister are deceased; his mother, eight brothers and three remaining sisters reside in Thailand.

10. The applicant's sponsor was born in Laos on 10 September 1959. She was previously married to Saren Lim in the period from 1 March 1989 to 24 June 2002. There are two sons of the marriage, born in 1990 and 1997. She became an Australian citizen on 17 March 1994. Her mother is deceased; her father resides in Australia as do her four sisters and her four brothers. She has one sister in Laos.

11. On their application, the parties stated they met on 10 May 2008 at Cabramatta West and they commenced a relationship three months later 10 August 2008. It was on that day they committed to each other in a long-term relationship. Their de facto relationship commenced on 15 August 2008.

12. A temporary visa (Subclass 820) was granted on 14 December 2012.

13. On 10 April 2014 the Department requested information to assist it in assessing the application for a permanent partner visa.

14. Submissions were received from the applicant in response to that request on 2 June 2014 and on 16 July 2014.

15. In the Record of Decision dated 18 December 2014, the delegate stated she was not able to be satisfied the nature of the household was that of a genuine spousal couple, or that there was a commitment by the applicant to a long-term relationship with the sponsor. He placed weight on the information given by the parties that there was no evidence of shared household expenses or pooling of resources, there was limited evidence of the social recognition of the claimed relationship, and there was no evidence the relationship had developed since the 820 visa had been granted, and the delegate was not satisfied the parties were residing at the same address.

16. Prior to the hearing, the applicant provided documents to the Tribunal, including but not limited to the following:

    ·Submission dated 19 July 2019.

    ·Photographs.

    ·Letter of Support from the President of the Management Committee of the Wat Lao Buddha Metta Buddhist Society of NSW dated 14 March 2019.

    ·Letter of Support from Champa Baramy.

    ·Statements from NAB Classic Banking in joint names for the period 20 May 2017 to 20 May 2019.

    ·Documents provided in the name of applicant, being:

    o   CTP Insurance and RMS Authorised Inspection Station-eSafety Report for the period commencing 9 June 2019;

    o   CTP Insurance and Car Registration for the period commencing 8 June 2019;

    o   Vodaphone bills for the period from 10 March 2019 to 9 June 2019;

    o   PAYG Payment summary - superannuation lump sum for the year ended 30 June 2019;

    o   NAB Personal Loan statement for the period from 21 August 2018 to 1 July 2019;

    o   NAB Low Fee account statement for the period from 25 May 2019 to 25 June 2019;

    o   Australian Super Death Benefit nomination dated 22 February 2019.

    ·Documents provided in the name of the sponsor, being:

    o   AGL gas account for various periods;

    o   AGL electricity account for various periods;

    o   Transaction listing for Retirement Access Plus Account dated 10 July 2019;

    o   Statements for Retirement Access Plus Account for the period from 14 February 2019 to 13 May 2019;

    o   Fairfield City Rates and Charges Notice for the period from 1 July 2018 to 30 June 2019;

    o   Sydney Water Account dated 11 April 2019;

    o   Optus bill for the period from 1 May 2019 to 31 May 2019.

    Tribunal proceedings

17. The issue in the present case is whether the applicant and his sponsoring spouse continue to be in a genuine and continuing relationship.

18. In making its findings, the Tribunal has considered the documents contained in the Department file (CLF2011/38380) and the earlier Tribunal file (1500420), as well as the present Tribunal file (1904945). The Tribunal has also considered the oral evidence provided at the hearings by the applicant, his sponsor and the witnesses and the submissions received both before and after the hearing.

19. During proceedings, the following documents were submitted by the parties:

    ·Letter from the applicant and sponsor (undated).

    ·Translated letter of confirmation dated 20 August 2019 regarding the ownership of land, signed by the Head of Sunphan Village.

    ·NAB joint bank statements for the period from January 2018 to September 2019.

    ·All Castle Home Contract in the name of the sponsor.

    ·Home loan bank statements for the period July 2015 to July 2019.

    ·Letter from Mr Bounmany Baramy regarding monies borrowed by the sponsor (AU$100,000).

    ·Copy of divorce papers of the applicant and his former partner indicating the parties divorced on 11 March 2013.

20. There were a number of inconsistencies in the evidence given at the time of hearing and these inconsistencies were put to the applicant following the hearing in accordance with s.359A of the Act in a letter dated 27 February 2020. The Tribunal explained the relevance and the consequences of relying on that information. The inconsistencies put to the applicant for comment were as set out below.

21. The visa applicant told the Tribunal that the sponsor’s older sister lives at Mount Prichard. She is closest to her and she has a boy and a girl. Her next sister lives at Kemps Creek. Sister three lives at the beach near the national park and she is a doctor. Sister four lives at Kemps Creek on a farm and sister five is the sponsor.

22. This is relevant to the review because it is inconsistent with the evidence that the sponsor gave at the hearing. At the time of hearing, she said her older sister lives in Laos and she last saw her this year (2019); she comes and stays with her niece and nephew. The sponsor was the second oldest girl. Her next sister, Julie, lives near where she lives but she does not know the name of the suburb; she has a son and a daughter. Her next sister lives at Kemps Creek. Her next sister lives near the coast a long way away, and she cares for the elderly.

23.   The visa applicant said in 2014 the house owned by the sponsor was demolished and rebuilt. The sponsor has a mortgage of $100,000 on the property. The mortgage is with St George and it is in the sponsor’s name only. The visa applicant gives the sponsor $400 per week for payments on the mortgage. Those payments are given to the sponsor in cash. The visa applicant said the rebuild had cost around $400,000 and he thought that the name of the project builder was Castle homes. The sponsor had borrowed $200,000 for the rebuild as she had savings of almost $200,000 in the bank at St George.

24.   When it was put to the visa applicant that there had been payments of $22,600 into the home loan mortgage account in the period from 1 January 2019 to 31 May 2019 and that amount was far in excess of what the parties stated their earnings were, he said that the money had come from the sponsor’s older sister who lives in Laos. He said she had last been in Australia in October 2018 and she brought $15,000 or $20,000 with her. When asked why that was, he said it was between the two sisters and had nothing to do with him.

1. This is relevant to the review because it is inconsistent with the evidence that the sponsor gave at the time of hearing. At the time of hearing, she said the house she lives in had originally been in her younger brother’s name and he had transferred it to her in 2004. She was unsure of how much was owing on the mortgage, but she thought it was around $100,000 and that the repayments were $1,600 per month. She said they withdraw $2,000 from the joint account and pay the mortgage from those monies. She said the house had been demolished and rebuilt in 2014. It was a project home and the buildings were All Castle homes. The cost was $400,000 and she had got a mortgage of $200,000. She said that she had savings in St George of $50,000 and she had borrowed $150,000 from her brother in Laos, then she said she borrowed from her older sister and her brother-in-law. She said her sister had brought the money to Australia in cash as she travels to Australia each year. She would bring $10,000 or $15,000 each time as she keeps cash at home. She said when they were building the house the joint account was used to make the payments on the house. They had rented a property for about one year while they were rebuilding.

2. Later in her evidence, the sponsor said that the mortgage was now $100,000. The mortgage had been $200,000 and she had repaid $100,000 of the mortgage in the last five years. When questioned as to how she was able to do that given their limited income she said that her sister gives her money from Laos. When asked why her sister would give her money from Laos, she says she borrows from her youngest brother in law. When asked who her younger sister in Laos is, as she had previously not mentioned her, she said she is not her sister, she is her cousin. She said she was the child of her father’s younger sister. She then said that she has a farm in Laos. The Tribunal put to her that she was making her evidence up.

3. Later in her evidence, the Tribunal asked about their finances and the fact that there had been $22,600 paid into the home loan account in the period from 1 January to 31 May 2019, and that was not reflective of the income they claim to have had in the period. The sponsor said they had been able to make those payments because they put $3,000 into the account each month from the $35,000 they had withdrawn from the super fund. She said they also had received a second super payment of $8,000. The sponsor said that she receives money from her sister in Laos. She has received more than $10,000, and her sister brought the money in on her last visit in November 2018. When asked who the money was from, she said the money was from her brother-in-law. When asked which sister he was married to, she said his wife is her cousin. The Tribunal then asked why her cousin was giving her money and she said that was because she had rice fields in Laos. She then said that it was her father’s brother-in-law, not her brother-in-law. She said the sister of her father died and that these were her children. She said that she bought land in his name in 1990. When asked how she had purchased that land, she said her former husband was working. When asked why she had put the land in the name of the brother-in-law of her father, she said that was because she lived in Australia. The father of the sponsor said he had no relationship with his brother-in-law.

4. When asked when his daughters had met the sponsor, the applicant said that that was a difficult question. He said in the first instance they did not want to come to his place. In 2013, he gave money to his older daughter to buy a car. He then said he wasn’t sure of the year and it may have been 2011 or 2012, and then later he said he gave money to the other daughter when she came to the house. He later said he gave his older daughter between $2,000 and $3,000 to buy a car. He gave his younger daughter a car that he bought for $6,000 and paid for in instalments. He said the older daughter came to the house to collect the money for the car. He then said that she first met the sponsor when he gave her money for a laptop. He then said that she came for his birthday party and that was maybe 2011, maybe 2012 or maybe 2013.

5. This is relevant to the review because it is inconsistent with the evidence the sponsor gave at the time of hearing. At the time of hearing, the sponsor, when asked when she had met his daughters, said she met them when they came to sign the paperwork to sponsor their father. It was put to her that that was in 2011 and they had moved in together in 2008. She then changed her evidence and said she didn’t remember when she had met his daughters.

30.   The older daughter of the visa applicant, when asked when she had first met the sponsor, said that she lived in Melbourne when her father commenced his relationship with the sponsor. She left Melbourne in 2009. She said that she has always known her, as the sponsor is a friend of her mother’s. She met her as her father’s partner in 2010 or 2011. She thought it was about two years after the relationship commenced. She said it was more than likely that they visited her together. She said that her mother adores the sponsor because she is looking after their father. She said her mother visits her father and the sponsor when she goes to visit.

1. The younger daughter of the visa applicant said she met the sponsor 11 years ago. She met her in 2008 and that was the first time she had met her. She sees her mother once a week and her mother sees her father at gatherings. She said her mother has met the sponsor and they are friendly to each other but that is all.

2. The father of the sponsor told the Tribunal he met the visa applicant at the home of the visa applicant’s former wife’s as she was a hairdresser and he and his children went there to get their hair cut. He said that she had come to his house often as she is a friend of his daughter and a friend of his ex-wife.

33.   The visa applicant, when asked how he had come to the hearing that day, told the Tribunal that his father-in-law, his mother-in-law, his friend and the sponsor had come by train from Cabramatta. He said they met at the station and ate a bun for breakfast and he then finished the bun when he arrived downstairs. He said he drove to the station and met his in-laws there. He got up at 5am and left for the station from home at 7am. He said his wife showered this morning and while she was in the shower, he went to pick up his friend and then went back to pick her up. He had showered the previous evening.

34.   This is relevant to the review because it is inconsistent with the evidence the sponsor gave at the time of hearing. At the time of hearing, the sponsor said she had got up at 6am and had left home at 7am. She said both she and the visa applicant had showered this morning. She said they had picked his friend up on their way to the station.

35.   In the Tribunal letter dated 27 February 2020, the applicant was invited to comment on the inconsistencies raised. He was advised the above information was relevant to the review because inconsistent evidence about the family and personal circumstances brings the credibility of the applicant and the sponsor generally into doubt. He was further advised that if the Tribunal relies on this information in making its decision, it may conclude that the evidence of the applicant and/or the evidence of the sponsor was not truthful and not accept that evidence. The Tribunal may also conclude that the parties do not in fact reside together and they live separately and apart on a permanent basis. This may lead the Tribunal to doubt that the applicant and the sponsor are in a genuine and continuing de facto relationship and to doubt that they have a mutual commitment to a shared life to the exclusion of all others. This in turn would be the reason, or a part of the reason, for affirming the decision that is under review because the sponsor would not meet the definition of ‘spouse’ in s.5CB(2) of the Act.

36.   The applicant was given additional time to make submissions on the matters raised. A further extension of time was requested and granted.

1. A submission dated 19 March 2020 was received in response to the matters raised under s.359A of the Act. Attached to the submission were the following:

   ·Statement (joint) from the applicant and sponsor dated 4 March 2020.

   ·Statement (translated) from the sponsor dated15 March 2020.

   ·Statement (translated) from the applicant dated 15 March 2020.

   ·Medical certificate for the sponsor dated 2 February 2020.

   ·Letter (undated) from Davison Baramy (son of the sponsor).

   ·Statement (undated) from Hathaiporn Pharikan (daughter of the applicant).

   ·Statement (undated) from Ketkanok Horrell (daughter of the applicant)

1. Included with the submission as to the inconsistencies in the evidence was a medical certificate dated 2 February 2020 from Dr Vary Nos. That medical certificate stated in part that the patient, Ms Deng Baramy, had the following medical conditions: post-traumatic stress disorder, osteoarthritis, haemorrhoids and uterine prolapse (operated).

2. The sponsor has requested the Tribunal to take into account her medical conditions. She stated she was quite forgetful because of those conditions. She said she was seeing a GP and a specialist for her conditions. She said she was not able to sleep, and she worried about things a lot. She said it was because of her arthritis she had been on a Centrelink payment. When asked by the Tribunal if she was still working, she confirmed she was working but on a part time basis. The medical evidence was that the sponsor had the conditions as set out above; it did not state the impact, if any, of the conditions on the sponsor's ability to give evidence at hearing or her memory. At the time of hearing, the sponsor did not raise with the Tribunal any impact on functionality caused by the medical conditions. The issue of her having those conditions was not raised until after the parties were put on notice of the Tribunal's concerns at the inconsistencies in the evidence. In that context, the Tribunal does not have before it sufficient evidence to make a finding that the sponsor's evidence was impacted by her medical conditions.

3. In the submissions post hearing, the applicant and sponsor both contended their evidence was impacted by the fact they had to rely on interpreters and by their being of older age, which impacted on their ability to remember past events as clearly as they should. They requested that the medical evidence provided by the sponsor be taken into account.  

4. When taking into account the above and the totality of the evidence given over three hearings, the Tribunal considers the oral evidence given by the applicant and the sponsor to be confused, conflicting and unconvincing. The Tribunal was concerned the parties frequently sought to adjust answers and sought wherever possible to evade giving an answer, especially when the questions pertained to their finances and family circumstances. The Tribunal did not consider it plausible that the parties could fail to remember pertinent details about relatively large financial transactions, family relationships and their living arrangements. The Tribunal was concerned the answers the parties gave were deliberately vague in an attempt to not disclose any information they considered may be prejudicial to the claim. The lack of knowledge and the frequent shifting of evidence displayed, particularly by the applicant, were not consistent with the relationship the parties claimed to have. Whilst it is appreciated Tribunal proceedings can be very difficult for parties and this stress can of itself lead to some inconsistencies in the evidence given, the Tribunal is not satisfied the explanations given are sufficient to overcome the cumulative effect of the inconsistencies.

5. The cumulative effect of the inconsistencies coupled with the evasiveness of the applicant was such that the Tribunal did not consider him to be a credible witness. The Tribunal does not place significant weight on his evidence unless it is corroborated by reliable evidence from other sources.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

6. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner of the sponsoring partner, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case, the applicant claims to be the de facto partner of the sponsor who is an Australian citizen and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

   Are the parties in a de facto relationship?

7. ‘De facto partner' is defined in s.5CB of the Act, which 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).

8. In forming an opinion whether they are in a de facto relationship, consideration must be given to all 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), which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Financial

9. The applicant told the Tribunal that he, the sponsor and her two sons lived in a house owned by the sponsor and while the sponsor had lived there since 2004, he had lived there since 2008. In 2014, the house had been demolished and rebuilt. The evidence of the financing of the rebuild was confused and conflicting. The parties were put on notice under s.359A of the Act of the Tribunal’s concerns as to the conflicts in this evidence. In their reply, the parties requested the Tribunal to consider their age, health, the fact they were from non-English speaking backgrounds and they were not highly educated. The Tribunal has taken these matters into account. However, the evidence submitted by the parties in an attempt to clarify matters was itself equivocal. For example, the sponsor, in her letter dated 15 March 2020, stated she had borrowed $150,000 from Laos, and her sister had brought in $100,000 when she came to Australia in the years between 2010 and 2013, as well as $15,000 in 2015, $10,000 in 2016, $10,000 in 2017 and $15,000 in 2018.  A letter provided to the Tribunal from Mr Bounamany Baramy dated 29 November 2009 stated Ms Baramy had borrowed from him the sum of $100,000. The Tribunal considered the latter evidence submitted, as well as the evidence provided at the time of hearing and referred to in the letter of the Tribunal to the parties under s.359A. The Tribunal considered the evidence was confused and conflicting and was an attempt by the parties to reconstruct events not on fact but in an attempt to achieve their desired outcome. The matter for concern for the Tribunal, when determining whether the financial aspects of the parties’ relationship was consistent with their being in a genuine and ongoing relationship, was that the sponsor had access to monies that went to the accumulation of her asset base (her home) and the applicant has little knowledge of those transactions and was not, on the evidence before the Tribunal, a party to the accumulation of the asset base from these funds. While the applicant provided a copy of his will showing the sponsor to be the sole beneficiary of his estate to the Tribunal, the sponsor told the Tribunal she had not made a will. In the context of two parties being on limited incomes, the Tribunal regards the evidence of the amount of money going into the home loan in the sponsor’s name as persuasive evidence that while there may be a relationship between the parties it was not that of partners in a genuine and continuing relationship.

10. The parties gave consistent evidence as to their employment. The applicant has not worked since March 2019 when he was informed by his migration agent he was not able to work on his Bridging visa. Since then he has withdrawn from his accumulated superannuation on two occasions; the first time he withdrew $35,000, and on the second occasion he withdrew $8,000. He has used these funds to pay his legal fees and for general living costs. Prior to March 2019, the applicant had worked full time at a mushroom farm, and he earned between $800 and $900 each week. These monies were deposited into the joint account at NAB. The sponsor is employed at a cucumber and tomato farm at Kemps Creek. She works three days per week for which she is paid around $469, which is also deposited into the joint account. This evidence was corroborated by the statements of the joint account provided.

11. The applicant said he and the sponsor have a joint account, but the sponsor does not have a card to operate that account. The sponsor said she is not able to use an ATM and she relies on the applicant to withdraw cash for her. In addition to the joint account, the applicant has a credit card with NAB. The sponsor does not have access to that account. He also has two loan accounts. The repayments on these loans are deducted from the joint account. The applicant told the Tribunal one loan was to enable the erection of a Colourbond fence at the sponsor’s home. The Tribunal accepts this evidence and has attached weight to it when assessing the financial aspects of the relationship.

12. At the time of the first hearing, the applicant and sponsor were taken to various bank deposits and asked what the source of funds deposited or transferred out of the account was and the purpose of funds withdrawn. The parties were in many instances unable to recall the source of funds deposited and in other instances gave confusing evidence.  For example, when asked about an entry on 24 October 2018 where there had been a withdrawal of $5,000, the applicant said that was for legal fees. The sponsor said she had no idea what those monies were for. The sponsor said the applicant gives money to her each month, but she could not remember how much he gave to her. When pressed on other transactions, the sponsor said she paid no attention to the joint account as it was the applicant’s account to use and operate. When the applicant was asked about large deposits into the home loan account, he told the Tribunal he did not know how the sponsor deposits into the account as it was not his account.

13. The parties do not have any joint ownership of property, no shared assets other than the house contents and they have no shared liabilities.

14. There was a paucity of evidence to make findings that they pooled their financial resources or shared day to day household expenses. The evidence as to whether the applicant gives the sponsor funds for daily household needs was equivocal given the withdrawals from the joint account were cash withdrawals and the sponsor could not recall the amount of money the applicant claimed to give her for household expenses. The Tribunal accepts the applicant gives the amount of $400 to the sponsor each week and those funds are then deposited into her mortgage account. As to whether he gives her funds in excess of that amount, the evidence was equivocal. In that context the Tribunal does not regard that evidence to be persuasive evidence of shared household expenses. There was no evidence either party owed the other party any legal obligations.

15. On the evidence available, the Tribunal was not able to make findings that at the time of decision the financial aspects of the parties’ relationship were indicative of their being in a spousal relationship.

    Nature of the household

16. The parties gave consistent evidence they had resided together at their present address for the past 12 years. They presently reside with the two sons of the sponsor.

17. At the time of hearing, the parties gave consistent evidence the applicant does most of the cooking. The sponsor mainly cooks for herself as she does not like the spicy food the applicant cooks. The sponsor mainly does the housework and they share the washing. The applicant and the sponsor do most of the grocery shopping together at weekends, paying either by card from their joint account or by cash.

18. The parties do not have any joint responsibility for the care and support of children. The Tribunal acknowledges the children of the sponsor reside at the property and their care is primarily the responsibility of the sponsor.

19. The Tribunal was concerned at the conflicting evidence given as to what occurred on the morning of 18 September 2019. These matters were raised with the parties following the hearing under s.359A. The confusion as to when the applicant collected his friend for the hearing was, in the Tribunal’s view, indicative of parties who were not as familiar with the rituals of a person they claimed to be living in a genuine and continuing relationship with.

20. On the evidence before the Tribunal, the Tribunal was not satisfied that the applicant and his sponsor lived in a genuine and continuing relationship at any time rather than that they were two individuals who for a time have shared premises while awaiting a migration outcome.

    Social aspects of the relationship

21. At the time of application, the applicant and her sponsor provided relationship statements outlining the history and nature of the relationship. The parties provided statutory declarations attesting to the genuineness of their relationship from Sone Sithisakd, a friend of the sponsor, and from Hathaiporn Pharikan, daughter of the visa applicant.  The Tribunal has taken these into account.

22. Further relationship statements from the applicant and the sponsor were provided in May 2014, as well as statutory declarations from Ketkanok Pharian, daughter of the visa applicant, and from Namkhang Yothoun, a friend of the sponsor.

23. The Tribunal accepts on the basis of the statements, the evidence given by the applicant’s daughters, the sponsor’s father and stepmother and the photographic evidence that the parties have socialised together with members of their immediate families and some mutual friends.

24. The family members of the applicant and the sponsor gave evidence that they are supportive of the relationship because it was very important to them that the applicant be able to stay in Australia and spend time with his daughters and granddaughter.

25. After considering all the information regarding the social aspects of the parties' relationship, the Tribunal is satisfied their relationship is supported by the applicant's family and some friends. In weighing all the available evidence regarding the social aspects of the parties' relationship, the Tribunal finds it is indicative of a couple in a genuine and continuing relationship.

    Nature of the persons’ commitment to each other

26. The evidence as to the party’s commitment to each other was, when considered in its totality, confused and unconvincing. While recognising that there was evidence of a co operative relationship between the parties such as the applicant paying for a fence at the home of the sponsor , when the evidence was considered in its totality the Tribunal was not convinced that the commitment to the relationship was a mutual commitment.

27. There were several inconsistencies in the parties’ oral evidence, and these mainly related to financial and family issues. The lack of knowledge displayed, by both the applicant and sponsor, of those matters as referred to previously, was not indicative of a genuine and continuing relationship. The Tribunal does not regard the explanations given to be persuasive. It is not plausible that you would not know with some specificity the family relationships of your partner, when you met their children and the source of funds used to pay off their mortgage, especially given that debt had been incurred during the course of your relationship. While the Tribunal does not attach weight to the confusion as to the birth order of the sponsors sisters the Tribunal does attach weight to the fact the applicant omitted to initially mention there was a sister in Laos especially given the evidence as to the role she plays in bringing monies from Laos for the sponsor. The Tribunal was concerned there was a lack of candour in the giving of the evidence by both parties in an attempt to present their relationship as being a genuine and continuing relationship.

28. Similarly, the Tribunal was concerned about the parties giving inconsistent evidence about their arrangements on the morning of the hearing. The explanations given in response were not persuasive. Conflicts in the evidence about such recent events are, in the Tribunal’s view, either indicative of the event not taking place or of it not taking place in the manner described.

29. The Tribunal regarded the cumulative effect of the inconsistencies in the evidence of the applicant as being indicative of the relationship not being characterised by a mutual commitment to a shared life together. The Tribunal places considerable weight on this evidence as it indicates either the parties do not communicate as claimed or they do not know each other as well as parties in a committed relationship would.

30. The Tribunal was concerned that when asked what the plans of the applicant were if the visa were not granted, he said he would not have anywhere to go. His answer was in the Tribunal’s view indicative of his priorities. He was concerned as to his future and where he would live. He did not make mention of his concerns for the sponsor or their relationship if the visa was not granted. While the Tribunal accepts parties enter into relationships for a variety of reasons and it is accepted that a visa may be a valid part of that equation, the Tribunal was concerned that in this instance rather than it being a genuine and continuing relationship between the applicant and the sponsor, a cooperative relationship had been engaged in for the purposes of obtaining a preferred migration outcome.

31. On the evidence before the Tribunal, the Tribunal is not satisfied the applicant and his sponsor provide one another with companionship and emotional support, or that they see the relationship as long-term.  While the Tribunal acknowledges the parties reside at the same address, the Tribunal is not satisfied they live together as a couple.

32. The Tribunal is not satisfied that the parties were, at the time of application, or are currently, in a genuine relationship. The Tribunal is not satisfied on the evidence that the applicant and his sponsor are committed to a shared life as husband and wife to the exclusion of all others.

    CONCLUSION

33. Given the above findings, the Tribunal is not satisfied that at the time the visa application was lodged and at the time of this decision the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing.  There is no evidence to establish the parties do not live together at the present time at the same residential address. The Tribunal, however, was not convinced that the applicant resides at this location in a committed relationship with the sponsor, rather than as an individual person who resides with another while waiting for a migration outcome.

34. On the basis of the above, the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time of this decision. Therefore, the applicant does not meet cl.801.221(2)(c).

35. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221(2A), (3), (4), (5) or (6).

36. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

37. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Moira Brophy
    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).