Preedapong (Migration)
[2019] AATA 2473
•24 April 2019
Preedapong (Migration) [2019] AATA 2473 (24 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Natjira Preedapong
CASE NUMBER: 1716002
HOME AFFAIRS REFERENCE(S): BCC2015/3334151
MEMBER:David Barker
DATE:24 April 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 24 April 2019 at 4:15pm
CATCHWORDS
MIGRATION – Partner (Temporary)(Class UK) – Subclass 820 (Spouse) – sponsorship limitations – sponsor previously granted relevant permissions – tribunal finds approval of sponsorship is limited – compelling reasons – not satisfied evidence establishes sponsor would be subjected to financial hardship – not persuaded sufficiently compelling circumstances to approve sponsorship – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994, Schedule 2, rr 1.03, 1.20, cls 820.211, 820.221CASES
Babicci v MIMIA [2004] FCA 1645
Kaur v Minister for Immigration [2017] FCAFC 184
Mala v Minister for Immigration 120051 FMCA 556STATEMENT 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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 11 November 2015 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (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 visa applicant did not satisfy cl.820.221(4) because they determined there were no compelling reasons to not apply the sponsorship limitations arising out of the finding that the review applicant had sponsored two previous partners to come to Australia.
The applicant appeared before the Tribunal on 13 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Christopher Jackson, her husband and sponsor.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a national of Thailand and is 35 years old. The Form 47SP ‘Application for a migration to Australia by a partner’ provided to the Department with the visa application states the visa applicant was previously married from September 2009 to April 2014, with that marriage ending by divorce. This form indicates there was one child from that relationship, but elsewhere provides no details in a section requesting details of any children of the applicant.
The sponsor was born in Australia and is 41 years old.
The visa application states the parties met in Bangkok, Thailand in October 2013 and committed to a relationship with each other to the exclusion of all others in August 2015. The applicant now claims the parties commenced their de facto relationship in 2013 and that the date identified on the visa application as to when they committed to their relationship was an error made by the previous migration agent who was at that time assisting the applicant. They were married in Sydney, NSW in October 2015.
The Form 40SP ‘Sponsorship for a partner to migrate to Australia’ provided to the Department with the visa application states the sponsor was previously married to Fahra Yu, from October 2009 to October 2012, with that marriage ending in divorce and that there was one child from that union. The sponsor stated he was also previously married to a person he had previously sponsored for a spouse visa, Sojung Jang, with that marriage ending by divorce. No details of the duration of that marriage or the sponsorship nomination were provided, due to the sponsor not recalling these details. He indicated that he had also previously been married to Yuen Wail Lam, with that marriage ending by divorce and that there was one child from that union.
Information on the Department file, particulars of which were put to the applicant during the hearing pursuant to s.359AA of the Act, indicate her husband had previously: sponsored a woman in relation to her application for a Combined Spouse (Subclass 820/801) visa, which was granted in July 2000; and a woman in relation to her application for a Provisional Partner (sc309) visa, which was granted in May 2007.
A copy of the decision record of the delegate was not provided with the review application. In the interest of being able to, where appropriate, discuss issues raised by the delegate, a summary of information from the decision record was put to the applicant, along with a request for any evidence she would like to provide in support of her claims, pursuant to s.359A and s.359(2) of the Act. The Tribunal has noted the concerns raised by the representative in relation to the invitation to comment on this information and the general invitation to the applicant to provide any further evidence in support of her claims. The Tribunal nonetheless considers it important to provide the applicant, in a procedurally fair manner, with the opportunity to respond to issues discussed in the delegate’s decision and is satisfied that through providing her with this opportunity and through the explanation it gave her during the course of the hearing it has explained to her aspects of the Act and Regulations so far as they are relevant to her visa application.
The particulars of information put to the applicant include the following:
You are invited to comment on the following particulars of information from the decision record of the delegate from the Department, dated 7 July 2018, where they explain why your application for the Partner (Temporary) (class UK) (subclass 820) / Partner (Residence) (class BS) (subclass 801) visa was refused, as, if the Tribunal was to rely on this information it would provide the reason or part of the reason to affirm the Department’s decision to refuse your visa application. The particulars of information are as follows:
· you applied for the Partner (Temporary) (class UK) (subclass 820) / Partner (Residence) (class BS) (subclass 801) visa on 11 November 2015.
· your sponsor is Christopher Jackson, date of birth 18 March 1977.
· There are two visas that you have applied for and each of those visas has only one subclass:
o Partner (Temporary) (Class UK) Subclass 820;
o Partner (Residence) (Class BS) Subclass 801.
At time of application you must satisfy regulation 820.211 by meeting the requirements of at least one of subclauses (1), (2), (2A), (2B), (3), (4), (5), (6), (7), (8), or (9). I have considered subclauses (1), (2A), (2B), (3), (4), (5), (6), (7), (8) and (9) of clause 820.211, and the delegate found that your circumstances do not fall within those provisions. I therefore find that you do not satisfy any of them. The delegate therefore assessed your application under Subclause (2) of regulation 820.211.
· At the time of application, you and your sponsor provided evidence that you were in a spouse relationship as defined by Section 5F, and that your sponsor was an Australian citizen who is over 18 years old, and he has provided a sponsorship form for your visa application.
· When assessing your application, the delegate indicated that they must be satisfied that your sponsor meets the sponsorship requirements. Regulation 1.20J prescribes limitations on approving the sponsorship relating to partner visa applicants by persons who have sponsored/nominated a person as a spouse, de facto partner, fiancé or interdependent partner or by persons who themselves have sponsored/nominated a person as a spouse, de facto partner, fiancé or interdependent partner, for at least 5 years after the visa application was made.
· Your sponsor has stated on Form 40SP that he has previously sponsored one partner, Ms Sojung Jang. However Departmental records show that your sponsor was the sponsor for two successful Partner visa applications. Your sponsor has therefore already sponsored 2 persons as spouses in his lifetime and as such is affected by the Regulation 1.20J limitations which prevent your sponsor from being a sponsoring partner as defined in regulation 820.211(2)(c).
· Under regulation 1.20J(2) the limitation on sponsorship does not apply if there are compelling reasons affecting the sponsor. Under policy, compelling circumstances affecting the interests of the sponsor include instances where: the applicant and their sponsor have a dependent child who is dependent on each of them or the death of the previous partner or the previous spouse abandoning the sponsor and there are children dependent on the sponsor requiring care and support or the new relationship is longstanding.
· On 18 January 2017, you were sent a letter requesting further information in relation to your sponsor's previous sponsorships. The letter from the Department specifically advised you that: Regulation 1.20J bars the approval of a sponsorship from persons in certain circumstances relating to previously successful partner applications. These include if your sponsor:
o has previously sponsored 2 or more persons as a spouse or de facto partner for migration to Australia (including if the sponsorship was withdrawn, but where the spouse or de facto partner obtained permanent residence on family violence grounds)
o has been sponsored as a spouse or de facto partner within the last 5 years
o has sponsored a spouse or de facto partner within the last 5 years
o However, the limitation may be waived allowing the Partner visa application to progress if
o there are compelling circumstances affecting your sponsor, such as:
o If your sponsor's previous partner has died
o if your sponsor's previous partner has abandoned the relationship leaving young children
o if you and your sponsor have children of your relationship
o if the new relationship is longstanding.
o If requesting a waiver of the sponsorship limitation, please provide evidence. It should also be noted that compelling circumstances must not be financial and must demonstrate a change of circumstances.
· In response, your sponsor advanced the following reasons on 15 February 2017 for consideration:
o his first sponsorship, i.e. for Ms So-Jung Jang, was over 13 years ago.
o his second sponsorship. i.e. for Ms Lam Yuen Wai, was not processed because the application was withdrawn.
· As stated above, Departmental records shows that your sponsor was the sponsor for two successful partner visa applications despite your sponsor's claim that one of the applications were withdrawn. Furthermore, there is no evidence that you and your sponsor have a dependent child who is dependent on both you and your sponsor. There is no evidence that your sponsor's previous spouse(s) is/are deceased or that your sponsor's previous spouse(s) abandoned him and there are children dependent on him requiring care and support.
· There is no evidence that you are in a longstanding relationship with your sponsor. You and your sponsor claimed to have met each other in October 2013 overseas, became committed to a shared life together to the exclusion of all others in August 2015 and were married in October 2015. The delegate noted that you obtained a divorce from your previous spouse, Mr Stoll, on 21 April 2014
· The delegate accepted that you and your sponsor are lawfully married because you have provided your NSW marriage certificate. However, given that your Partner visa application was lodged on 11 November 2015, which was 32 days after you married on 10 October 2015, the delegate did not consider that you and your sponsor were in a longstanding partner relationship at time of application which would warrant a waiver of the sponsorship limitation.
· The delegate noted that your sponsor claims that his past sponsorship of Ms Jang occurred 13 years ago. The delegate acknowledged the amount of time that has elapsed since the sponsorship of Ms Jang, however the operation of Regulation 1.20J captures the past grants where your sponsor had successfully sponsored his then-partner at that time.
· The purpose of the sponsorship limitation is to prevent abuse of the partner migration provisions, and the limitations exist to protect the integrity of the partner visa programme. In forming an opinion whether you and your sponsor satisfies the criteria at 820.221(4), the delegate assessed the sponsorship limitations in accordance with Regulation 1.20J. In particular, the delegate assessed the response to the Department's letter of 18 January 2017 in relation to the provisions of Regulation 1.2042). The delegate was not satisfied the response provided on 15 February 2017 meets the requirements of this subclause for consideration of a sponsorship waiver. After considering all the available information, the delegate was not satisfied that there are compelling circumstances affecting the sponsor such that the sponsorship limitation in Regulation 1.20J should not apply. As Regulation 1.20J applies and the sponsorship limitation has not been waived, you do not meet subclause 820.221(4).
· As you do not satisfy subclause 820.221(4) of the Migration Regulations, the delegate was not therefore not satisfied that you meet subclause 820.221 of the Migration Regulations. The delegate therefore decided to refuse your application for a Partner (Temporary) (Class UK) visa.
· As your Partner (Temporary)(Class UK) (Subclass 820) visa has been refused, you are not the holder of a Subclass 820 visa. Therefore, you do not meet the requirements of subclauses 801.221(2), (2A), (3), (4), (5) or (6).
· Further, you are not a person who has held a Subclass 820 visa that ceased on notification of a decision of the Minister to refuse you a Subclass 801, in circumstances where the refusal decision was reviewed by the Tribunal and remitted to the Minister for reconsideration, and where you have been assessed as meeting the criteria for the grant of a Subclass 801 visa apart from the criterion requiring you to hold a Subclass 820 visa. Therefore, you do not meet the requirements of subclause 801.221(8).
· As you fail to satisfy the requirements of any of subclauses 801.221 (2), (2A), (3), (4), (5), (6), (6A), (7) or (8), you therefore fail to satisfy the requirements of clause 801.221.
The Tribunal will take a fresh look at your visa application and make a decision after considering the evidence that is put before it and by applying the relevant law to that evidence. As indicated earlier in this letter, the Tribunal has reached no conclusions on the basis of the particulars of information from the delegate’s decision record, which are highlighted in this letter. This information is however relevant to your visa application and you are invited to comment on and respond to this information. The Tribunal will also consider any other evidence you would like to provide in support of your application.
A response was received from the applicant’s representative on 8 January 2019, which amongst other things stated:
We refer to your letter, dated 24 December 2018, providing until 7 January 2019 to comment on or respond to information, and to provide information. The information our client is invited to comment on or respond is mostly a rendition of the delegate's decision and findings, references to the law and Departmental Policy in PAM3. Some of the "information" has been copied and pasted from the delegate's decision. Whether that is "information" for the purposes of s.359A of the Migration Act 1958 is open to interpretation.
Further, the Tribunal must also ensure that the review applicant understands the consequences of the information being relied upon in affirming the decisions under review. We submit the Tribunal has not provided the consequences of not meeting cl.820.221 and cl.801.221. The Tribunal will know they are an essential criteria for the grant of the visa, but the requirements of s.359A of the Act are strictly interpreted by the Courts and the Tribunal's failure to spell this out in clear terms casts doubt on whether this letter has, in reality; been sent under s.359A of the Act
We shall endeavor to comment on or respond to the relevant information. We submit that the r. 1.20J to the Migration Regulations 1994 (the Regulations) limitation on sponsorship should be waived because of the compelling circumstances affecting the sponsor. First, the first sponsorship was in about 2004, some 15 years ago. After obtaining the Department's file, we can confirm these dates. Second, we are instructed one of the sponsored partners no longer resides in Australia. The Tribunal can confirm this in the movement records. Third, the review applicant and Mr Jackson are in a long-term spouse relationship. Fourth, there is no evidence that the partner migration programme has been, or is being, manipulated or used for other than genuine purposes. Fifth, the review applicant has been assisting Mr Jackson in his business.
Once we obtain the Department file, we will be able to provide a more detailed submission.
In relation to the request to provide information, we submit that a valid request for information under s.359(2) of the Act requires something more than just "any other evidence you would like to provide in support of your application".In any case, we submit that the review applicant and Mr Jackson are in a genuine ongoing partner relationship which is of long term nature. You will see in the movement records that the review applicant travelled to Thailand last year, when she went to visit her sick mother; Mr Jackson went there more recently; and they returned together on 5 January 2019.
At and prior to the hearings the review applicant provided documents to the Tribunal including, but not limited to:
· a written submission from the representative;
· statutory declarations of the applicant and sponsor, declared on 13 March 2019
· Documents evidencing the spouse relationship:
o Residential tenancy agreement
o Photographs of the parties, together with family, friends and with their pets
o Travel records
o Marriage Certificate
The written submission from the representative, dated 12 March 2019, amongst other things, states:
We refer the above matter set down for hearing on 13 March 2019.
We apologise for the delay in providing this submission.
We have provided accompanying documents relating to the genuine, ongoing and exclusive partner relationship of Mrs Preedapong and Mr Jackson.The issue in this case is whether there are compelling reasons affecting the sponsor, Mr Jackson, so as to approve the sponsorship, despite Mr Jackson having previously sponsored two partners in which a relevant permission was granted.
…..
PAM3 also provides that r.1.20J(2) allows officers to approve a sponsorship that would otherwise fail to meet r.1.20J(1) requirements if there are 'compelling circumstances' affecting the sponsor. As a matter of law, all cases must be assessed against the provisions of r.1.20J(2).Under policy, compelling circumstances affecting the interests of the sponsor include instances where:
·the applicant and their sponsor have a dependent child who is dependent on each of them or
·the death of the previous partner or
·the previous spouse abandoning the sponsor and there are children dependent on the sponsor requiring care and support or
·the new relationship is longstanding.
Policy states that these examples are not exhaustive. The purpose of the sponsorship limitation is to prevent abuse of the partner/fiancé migration provisions and this should be kept in mind when deciding whether to exercise the waiver.
Policy states that every aspect of the sponsor's circumstances is relevant to the existence of compelling circumstances. Although no definitive list is given, Policy refers to some general aspects that may be particularly important are:
·the nature of the hardship/detriment that would be suffered (by the sponsor) if the sponsorship were not approved.
·the extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.
The above examples are not intended to be exhaustive. The Explanatory Statement which accompanied the introduction of r.1 .20J emphasised that the purpose of the sponsorship limitation was to curtail abuse of the partner migration programme. Policy advises that decision makers should be mindful of this when assessing whether to approve a sponsorship despite the limitation.
On the appropriate approach to the exercise of the discretion, in Babicci v MIMIA [2004] FCA 1645 (16 December 2004) at [17] Moore J stated:
.... the Tribunal must consider whether the circumstances are (to use the defined meaning in the New Oxford Dictionary referred to above) such that they evoke interest or attention in a powerfully irresistible way. It is a way that must be irresistible to the Tribunal Moving away from dictionary definitions (but with the attendant risk of propounding a test or approach not based on language actually used), plainly what the regulation had in mind was that the material reveal circumstances such that the Tribunal would be overwhelmingly inclined to exercise the discretion in favour of the applicant and would approve the sponsorship.
On appeal to the Full Federal Court, Tamberlin, Conti, and Jacobson JJ in Babicci v MIMIA [2005] FCAFC 77; (2005) 141 FCR 285 stated (in relation to "compelling" in the context of "compelling circumstances"):
[21] In our opinion there is no error in construing "compelling circumstances" to mean circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion. We were told that no case has authoritatively construed the phrase and the whole of the debate depended upon dictionary definitions of the word "compelling".
[22] In our view nothing turns on the fact that the MRT's interpretation relied upon the present participle of the verb "to compel". We respectfully disagree with the learned primary judge's view of this.
[23] In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that "compelling circumstances" were those which "forced or drove" or "compelled" a particular result.
[24] There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of "compelling". But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in reg.1.20J(1) should be waived.
Recently, in Kaur v Minister for Immigration [2017] FCAFC 184 (the first appellant was a Ms Balihar Kaur), the Full Court of the Federal Court of Australia, in the context of PIC 4020(4)(a) said (at [26]) that "compelling circumstances" were "forceful". The Full Court stated that PIC 4020(4)(a) set up a two staged inquiry, it obliges that the decision maker first be satisfied that
compelling circumstances existed, and only then, may the decision maker go on to consider those circumstances in the application of his or her discretionIn Mala v Minister for Immigration 120051 FMCA 556 her Honour Judge Barnes (then FM) expressed the distinction between compelling and compassionate as follows:
[21] Counsel for the applicant contended that, consistent with the ordinary meaning of the word, "compelling" in reg.2.05(4)(a) meant "invoking substantial or great sympathy". However such a definition is more applicable to the concept of "compassionate", which the Macquarie Dictionary defines as "having or showing compassion" which in turn is defined as "a feeling of sorrow or pity for the sufferings or misfortunes of another; sympathy". In contrast, compelling is defined in the Macquarie Dictionary as "demanding attention or interest" when used as an adjective.
Regulation 1.03 to the Regulations provides:
long-term partner relationship, in relation to an applicant for a visa, means a relationship between the applicant and another person, each as the spouse or de facto partner of the other, that has continued:(a) if there is a dependent child (other than a step-child) of both the applicant and
the other person—for not less than 2 years; or
(b) in any other case—for not less than 3 years.
Application of the law to the facts
We submit that the r.1.20J limitation on sponsorship should be waived because of the compelling circumstances affecting the sponsor, Mr Jackson. We submit these circumstances are forceful and demanding attention or interest.First, Mrs Preedapong and Mr Jackson are in a long-term partner relationship within the meaning of r.1.03. They commenced a defacto partner relationship in November 2013 and were married on 10 October 2015. The date of "27 August 2015" given in the Form 47SP (f64) and Form 40SP (f16) was a mistake of the previous migration agent. This can be demonstrated because it is inconsistent with all the other evidence, in particular, Mr Jackson's statement (at f85-89) that the parties commenced a defacto partner relationship on 19 November 2013 and they resided together until he returned from Thailand in December 2014 (see f87); they continued to communicate on a daily basis; and Mrs Preedapong came to spend time with Mr Jackson in April 2015 and later until they were married. It appears that the previous migration agent was not aware of the laws relating to defacto partner relationships and provided the date of engagement for the marriage. In the alternative, even if the date of 15 August 2015 was taken to be correct, their relationship is not less than 3 years and meets the definition in r.1.03.
Second, if the decision under review was affirmed, Mr Jackson would be forced to close his business and relocate to Thailand to live with Mrs Preedapong. This will have a significant impact on Mr Jackson who has built his business since 2015. Mr Jackson has spent over 17 years in the corporate world in senior executive roles throughout Tier 1 enterprise organisations. He commenced operating as a sole trader under the business name Gentle Giant Group in 2015, then registered 1800FLOOD.com.au Pty Ltd (of which Mrs Preedapong is the Director) in June 2018 and 1800FLOOD Pty Ltd (of which he is the Director) in December 2018. There are separate companies for different types of work depending on the risk. The business specialises in 24/7 Emergency Water Damage, Flood Restorative Drying, Biohazard Decontamination, Large Loss Specialist Advanced Structural Drying Thermography, Reporting Psychometric Data Logging, ATP Microorganism Testing, plus Microbial & Biological Load Testing.
Third, the first sponsorship was in about 2004, some 15 years ago. The Department's file does not have the details of the first or second sponsorship, nor were they disclosed in the Tribunal's correspondence dated 24 December 2018. We note that in the Form 40SP, Mr Jackson declared he had sponsored two partners (see f8). This indicates there is no credible evidence that the partner migration programme has been, or is being, manipulated or used for other than genuine purposes. We submit that the length of time which has passed since the first sponsorship indicates that serial sponsorship is not a factor in this application. We also note there has also been a significant period of time since the second sponsorship.
Fourth, we are instructed one of the sponsored partners no longer resides in Australia. The Tribunal can confirm this in the movement records. Although this is not specifically identified in Policy, we submit it is significant if the former partner is no longer residing in Australia.
Finally, the correct and preferable decision is to set aside the decision under review so to allow Mr Jackson and Mrs Preedapong to continue their long-term partner relationship in Australia, given the compelling circumstances affecting the sponsor.
The applicant’s statutory declaration states in part:
My family background
1)I was born in Lampang, Thailand on 12 June 1983.
2)I am a citizen of Thailand.
3)I can speak Thai and English. I am not fluent in English.
4)I am Buddhist.
5)My birth name was Khanitha and in 1984, I changed it to Natjira.
6)When I was growing up, I lived with my parents and older brother. My grandmother and two aunts lived in the same street as mine only 5 meters from my house. My grandmother died when I was 18 years.
7)My father, Krisana Preedapong was a teacher and worked for a public school. He is currently retired. Now he enjoys teaching ballroom dancing.
8)My mother, Yupin Preedapong was the principal of private school around the corner from my house. She is currently retired.
9)My older brother, Yutthana Preedapong 39 years old, works for Department of Employment in Lampang. He has not been married and still lives with my parents in Lampang. He has a girlfriend and is not yet married.
10)I like collecting antique jewellery, listening to jazz music, reading and playing the piano.
11)I was married to an American man in September 2009 and lived with him in Mexico, then Houston, Texas. I went back to Thailand in 2012 because I found out he had an affair and was sending money to another girl in Thailand. He had lived in Thailand for more than 10 years and got the personality of a Thai man, that is, they can have many girlfriends without any guilt. That man came to Thailand to get divorced from me in Thailand, so we were divorced in April 2014. We did not have children and it is a mistake by the migration agent on the application form that we had a child.
About my partner
12)My husband's name is Christopher Denis Jackson.
13)His date of birth is 18 March 1977.
14)He was born in Sydney.
15)Chris' parents died in 2002.
16)Chris' late father, Wally Jackson worked as an electrical engineer with Energy Australia.
17)His late mother, Clare Jackson worked as a teacher at Auburn Public school.
18)His younger brother, Peter, works at a plumbing company in management. He is married with Katrina. They have two children Zac and Emily. They currently live on the Sunshine Coast, Queensland.
19)Chris speaks English and a very small amount of Thai.
20)Chris is Catholic.
21)Chris is the Director at 1800FLOOD Pty Ltd and I am the Director of our other company, 1800FLOOD.com.au Pty Ltd.
22)Chris enjoys relaxing at home, travelling, eating at restaurants and reading in his spare time.
Nature of the household
23)We are currently residing at 301/3 Northcote Street, Mortlake, a lovely one-bedroom apartment which is close to Yeralla Bay. It is conveniently located on the outskirts of Breakfast Point.
24)I am in charge of cleaning the bedrooms and bathroom, but most of the time I clean the whole apartment. Chris sometimes vacuums.
25)We enjoy sitting on our leafy balcony with our dogs. We have two dogs, Porcha and Coco. They are adorable. Coco sleeps with us in the same bed every night.
26)We go to our favourite restaurant on the weekend, especially Chat Thai in Thai Town, Hugos in Manly, and Flower Child in Chatswood.
Financial aspects of the relationship
27)We have a business account. I get paid a salary as a Director into my personal account. I use my personal bank account for shopping and household expenses. All business expenses are paid from the business account. I do the bookkeeping, sending invoices and following up invoices.
28)When we travel together, Chris will pay for it. When I have gone to visit my family in Thailand, I paid from my bank account, which is also our money.
29)We have a joint lease on our apartment and pay $440 per week.
30)Chris always supported me financially since we started our relationship. When I worked at a law firm in Bangkok, I was paid THB25,000 or $1,041 per month. He provided me with THB10,000 every month.
31)I send THB15,000 each month to my parents through a private agency.
32)Four years ago, my mother was diagnosed with kidney failure. Chris paid for the whole treatment and vein implant procedure.
33)Chris knows I love jewellery, so he bought me earrings and necklace for Valentine's Day last month.
34)The most impressive gift Chris bought for me was my Yamaha U3 piano for my birthday in 2017.
35)Chris also bought a brand new car for my father last month. He sent THB750,000 to purchase it through my account in Thailand.
Social aspects of our relationship
36)Unfortunately, Chris' parents died when he was 25 years old. He took me to where they are buried in the cemetery every New Year. He always says that his mother had the same personality as my mother.
37)I met his brother, sister-in-law, and their children on the Gold Coast last September 2018. Our niece, Emily is so adorable.
38)I have met Chris' best friend, Phil Henderson, in Thailand 2015. We spent a couple days in Bangkok and travelled to Phuket and Krabi.
39)When we lived in the house located 23 Makinson Street, Gladesville, Phil lived with us for approximately 5 months while his fiancé was residing in New Zealand.
Nature of our commitment
40)We started living together in Bangkok in November 2013. At the time, Chris was investing in foreign exchange and I was working in the law firm.
41)We have had our dogs for between one and two years and they are our daughters.
42)My husband and I have a love affair for travel, and we both share an appreciation for driving up to our favourite seafood restaurant on the waters-edge at Brooklyn on a sunny Sunday afternoon.
43)I went back to Thailand last October to visit my mother. Chris came there to accompany me back home as I needed a new bridging visa, then we returned to Thailand for another visit.
44)Chris loves me unconditionally and I love him. He supports my family and treats my mum like his mum, even though I did not meet his mum. He has a warm heart and my mum loves Chris as her own son.
The sponsor’s statutory declaration states in part:
My family background
1)I was born in Sydney on 18 March 1977.
2)I am a citizen of Australia.
3)I speak English. I can speak a little Thai.
4)My religion is Catholic.
5)My late father worked as an electrical engineer with Energy Australia. My late mother worked as a teacher at Auburn Public School. They both passed away in 2002, my mother 4 weeks before my father.
6)My brother and his wife have two children. My brother, Peter Jackson works at Cooke & Dowsett Plumbing as a Chief Estimating Officer. My sister-in-law, Katrina Excell is a stay-at-home mother, whilst operating her accountancy practice, Excel! Partners. They also have a son, Zac Jackson, and a daughter Emily Jackson.
7)I completed a Bachelor of Business, major in Marketing. Spent over 17 years in the corporate world in senior executive roles throughout Tier 1 enterprise organisations, prior to becoming the Director at 1800FLOOD Pty Ltd.
8)I founded the Gentle Giant Group in 2015 and later formed the companies, 1800FLOOD.com.au Pty Ltd (of which Natjira is the Director) and 1800FLOOD Pty Ltd (of which I am the Director).
9)The business specialises in 24/7 Emergency Water Damage, Flood Restorative Drying, Biohazard Decontamination, Large Loss Specialist Advanced Structural Drying Thermography, Reporting Psychometric Data Logging, ATP Microorganism Testing, plus Microbial & Biological Load Testing.
10)Only Natjira and I work full time for the business. Natjira does all the bookkeeping, invoices and chasing debts. The turnover last year was just over $618,000.
11)I am married to Natjira Preedapong, born in Thailand on 12 June 1983.
12)We have been living together since November 2013. We were married on 10 October 2015.
Nature of our household
13)In addition to previously residing together in Bangkok, West Ryde, followed by Lane Cove, then 22 King Street, Hornsby, 23 Makinson Street, Gladesville, we are now residing at 301/3 Northcote St, Mortlake 2137.
14)We have rented a one bedroom apartment, located on the second floor of the building. We pay $440 per week.
15)I do the vacuuming for the pet hair. Natjia cleans the apartment and she does the washing. We go shopping together, now at Coles because they are the closest.
16)We both take turns in walking, bathing, and feeding the dogs.
17)I enjoy different styles of cuisines, so we frequent a variety of restaurants together, but still maintain a regular visitation to our favourite restaurants, especially Chat Thai in Thai Town in China Town.
Financial aspects of our relationship
18)I pay for major expenses such as tickets and hotels.
19)Other business expenses are paid through the business account, since we operate the business together.
20)We do not have joint bank accounts. Natjira gets paid Director's fees into her account which she uses for her personal expenses and some household expenses.
21)We are looking at the possibility of acquiring an investment property in Natjira's name to take advantage of the first home buyers' grant.
22)When Natjira was working in Thailand before she came to live here, I provided her with funds every month to avoid any potential issue with rent and also to support her mother, father and brother. I sent THB10,000 every month by Western Union. Natjira now sends them THB15,000 every month.
23)During this years' holiday to Thailand, my wife and I stayed at Lampang, which is Natjira's hometown, which she provided me with accommodation and food for the entire stay.
24)We have given each other small gifts for Christmas, birthdays, and major events, like Valentine's Day and our wedding anniversary.
25)In February 2019, I sent my father-in-law THB729,000 to purchase a new Honda City. The purchase was to replace his 20-year-old car, so my father-in-law could take my mother-in-law to Chiang Mai every month for monitoring and testing her vein implant. I wanted to ensure my mother-in-law was safe and arrived in comfort because the road infrastructure from Lampang to Chiang Mai has some the bumpiest roads throughout Thailand.
Social aspects of our relationship
26)I have met all of Natjira's friends when I was residing in Thailand. During last January's holiday to Thailand, I got a chance to see her two best friends once again in Bangkok.
27)Natjira and I met my brother, sister-in-law, niece, and nephew at the Gold Coast in September 2018. They live on the Sunshine Coast. After my parents passed away, there was an inheritance dispute and we only started talking with them about 6 months ago.
28)We have declared our relationship to the Australian Taxation Office.
Nature of our commitment
29)We have a lot in common in our love of travel (local, domestic, and international) and appreciation of the local cafes. We appreciate and are passionate about enjoying life.
30)Our differing world views is great as it forces me to re-evaluate my opinions and views. I generally take a more pragmatic approach, but she is more laid back and easy going, which allows our strengths to complement each other. For example, when we travel I like a general plan and schedule. However, Natjira reminds me to take it easy and enjoy the experiences more. I take care of the big overall plans, whilst Natjira makes sure I enjoy each day of the trip.
31)Natjira is the kindest person I have ever known, is honest and self-aware, completely lacking in envy and happy with what she already has.
32)Natjira is not out to make the most money or have the latest items, she just wants a nice life and to spend time with our two dogs. She is happy, content, and comfortable with her life.
33)Even with English as her second language, her sense of kindness and warmth is always present.
34)Natjira is someone I can talk with openly and I know she will not judge me.
35)Natjira is someone I know who will be there for me for the long run, no matter what happens in life.
36)Her strength, perseverance and independence is something I greatly admire.
37)I love being with her and miss her when she has gone to visit her family in Thailand.
Impact on me if Natjira's visa application was refused
38)Natjira and I have been together since November 2013 when she came to live with me when I was working in Thailand. We have lived together since then, either as a defacto couple or married couple. When I came back to Australia in December 2014, we were still together and she came here to live with me. I asked her to get married in August 2015 and we were married on 10 October 2015. We have been living together over 5 years and it would be impossible to live without her.
39)I have talked with Natjira about what would happen if the application was refused. I have told her that I will come to live in Thailand with her and keep trying to bring her with me to live in Australia. I will have to sell the business. I cannot just get someone to manage it because everything is based on what we are doing with the business, not others.
TRIBUNAL HEARING
375A Certificate
After making some introductory remarks, the Tribunal noted that a 375A Certificate had been issued by the Department restricting access to certain documents on the Departmental file. The Tribunal provided the applicant and representative a copy of Certificate, inviting any comments or submissions that the representative or applicant would care to make as to the validity of the Certificate. After a brief adjournment, the applicant indicated she would rely on submissions from her representative with respect to this issue. The representative submitted that he had not looked into the validity of the Certificate and that he would be concerned if the restricted documents contained information that maybe adverse to the applicant’s claims. He said that the information may pertain to information that is not unfavourable, such as citizenship details or other information regarding people who provided witness support declarations and that accordingly he had no objection to the Certificate. The representative submitted that it was his understanding that if there was information contained in the restricted documents that was relevant to the applicant’s claims, this information would be put to her during the hearing.
The Tribunal noted the representative’s submissions and told the applicant that it considers the 375A Certificate to be valid, as it has been prepared by a duly appointed delegate of the Minister and because the release of personal information regarding certain people identified in the restricted documents would be contrary to the public interest.
The Tribunal told the applicant that the gist of the information and documents restricted under the 375A Certificate pertain to:
·her husband’s sponsorship for a person who was granted a combined Subclass 820/801 Partner visa, with the date of grant for the Subclass 801 visa being in July 2002;
·her husband’s sponsorship for a person who applied for a combined Subclass 309/100 Partner visa, where the Subclass 309 visa was granted in September 2007, but the application for the Subclass 100 visa was subsequently withdrawn.
The Tribunal told the applicant that whilst it had provided her with the gist of the information at this early stage of the hearing, it would also put that information to her and invite her to comment upon it at a further stage in the hearing.
Applicant’s evidence
The Tribunal put to the applicant that it would appear, on the basis of her representative’s submissions and the statutory declarations provided with the review application that she is not disputing that her husband had previously sponsored two different people, in relation to applications for Partner visas, where those applications were successful. The applicant confirmed this was correct. The Tribunal asked the applicant if she would therefore like the Tribunal consider whether there are compelling circumstances affecting her husband that would make it appropriate to approve his sponsorship of her Partner visa. The applicant confirmed that this was correct.
The Tribunal enquired about the state of the parties’ relationship and in response the applicant said it is a very good and loving relationship. She said that the sponsor has a very good connection with her family and is very supportive of both her and also her family in Thailand. The applicant said that she and the sponsor are together nearly all of the time and that they support each other in both emotional and practical ways. She said they have an agreement that they will share cleaning tasks in the house, but that in reality she does most of the housework and also the cooking in their household.
The applicant said she and the sponsor spend a lot of time just hanging around at home. She said the sponsor runs his own business, which is a flood restoration company. She said that sometimes they work together and that she may accompany him to flood damaged properties. She said there are two strands to the business and that he looks after the commercial side, while she looks after household clients and also prepares invoices and things like that. She said that their income comes from the flood restoration business and that she has no employment apart from her involvement with the business.
In response to a question as to the compelling circumstances affecting the sponsor, which would make it appropriate to approve his sponsorship of her Partner visa application, the applicant said that she and the sponsor were living together for about a year in Thailand before he came back to Australia in or around 2014. They were communicating all the time after he returned to Australia and the sponsor missed her and so she came to Australia to visit him. She said that every day on that trip the sponsor would cry because he was upset and he would tell her that he was unable to live by himself. She said they eventually decided she would come to live with him in Australia, which she subsequently did in or around December 2015.
The applicant told the Tribunal that she and the sponsor run the flood restoration business together and that there are no other employees. She said that if she was no longer around to assist him it would have an adverse effect on the business and also on the sponsor more generally. She said that the sponsor doesn’t cook for himself and if she was not here with him, he would just eat yoghurt. She said that this is why she feels that she needs to be with him, to look after him.
The Tribunal asked the applicant if she and the sponsor had discussed what they would do if the application for the Partner visa is not successful. The applicant said they had and that their plan is to fight to the end, but if nothing works out, he will accompany her to Thailand so that they can stay together. She said that they would maybe try and open a business in Thailand and possibly a law firm, as she used to work in a law firm.
The Tribunal asked the applicant what sort of effects did she think it may have on the sponsor if he were to accompany her to Thailand. She said that the sponsor cannot speak the Thai language and as a result his employment prospects in Thailand would be very limited. The Tribunal asked the applicant if the sponsor had worked in Thailand during the year they spent together there in 2013 and she said he had worked as an investor in the foreign exchange market at that time. The applicant said that the other way that the sponsor would be impacted would be by the heat and humidity in Thailand, which would affect his mood a lot. She said that the food that is available there also affected him in the past, causing him to be hospitalised for diarrhoea. The applicant said that she and the sponsor also have two dogs, aged around two years and two and a half years. She said they would be affected if she and the sponsor moved to Thailand and that this would be distressing to the sponsor and her.
The Tribunal invited the applicant to comment on some of the claims in her representative’s written submissions about compelling circumstances affecting her husband which make it appropriate to approve his sponsorship of her Subclass 820 Partner visa:
·as to how well the length of the parties’ relationship is relevant to whether there are compelling circumstances to approve the sponsorship, the applicant said she and the sponsor are rarely apart from each other and that even when she has visited her mother in Thailand for a few weeks, the sponsor has contacted her frequently asking her to come back to Australia early;
·as to the detrimental effect on the sponsor’s flood restoration business, if the sponsorship limitation was imposed and she had to return to Thailand, the applicant said there would be a very big impact as the business would have to be sold. She said they have invested a lot of money into the business, purchasing equipment such as a truck, a suction machine to vacuum up water and other specialist equipment. She said that they have both put their heart and soul into the business;
·in relation to the claim that one of the people her husband had previously sponsored for a Partner visa lives in Australia, the applicant said she has not met either of the two people that sponsor previously sponsored and she had no comment to make about this issue;
·in relation to the claim that a significant length of time has passed since the second occasion on which her husband sponsored a person for a Partner visa, the applicant said she had no comment that she wished to make about this issue.
Sponsor evidence
In response to questions from the Tribunal, the sponsor confirmed he is not disputing that he has twice previously sponsored people who were successful in applying for a Partner visa. He said that he went to Thailand in August 2013, met the applicant in or around November 2013 and that they started living together in December 2013. He said that he returned to Australia approximately 12 months late in December 2014. With respect to how long he and the applicant have lived together in Australia, the sponsor said they have done so since the time of their marriage in October 2015.
The sponsor gave evidence he would be adversely affected if his sponsorship of the visa applicant is not approved because of the impact this would have upon the flood restoration business that they are both directors of. He said that this business provides them both with their sole source of income and that the income he earns is also an important source of funds from which he can provide financial support to the applicant’s family in Thailand.
The sponsor said the business would need to be sold if he cannot sponsor the applicant as they wish to remain together and he would accompany her to Thailand. He said that the flood restoration field is a specialised industry and selling the business in that sort of circumstance would constitute a fire sale, where they would not get the market value of the business. He said that normally market value would entail a one to one equivalence with the revenue from the business, but that if it were to be fire sale, they would maybe be able to sell it for a third of the value of the revenue. In response to a question from the Tribunal the sponsor confirmed the business revenue for the 2018 financial year was $618,454, with operating expenses amounting to around $400,000.
The sponsor gave evidence that a further way in which he would be adversely effected if his sponsorship of the visa applicant is not approved and he was to accompany the applicant to Thailand so that they could remain together, is that he does not speak the Thai language and that this was the greatest challenge when he lived there previously. He said it would be very difficult for him to find secure employment and that this would present him with a very challenging situation.
Applicant response to the sponsor’s evidence
The applicant said that if she and the sponsor were to go to Thailand their income would be very different to what it is here in Australia, as the applicant would have to sell his business and this would mean their capacity to financially support her family would diminish. She said this would cause a lot of difficulties as her mother has a kidney disease and quite high medical costs. She said she has a large family in Thailand but nonetheless the financial support the sponsor sends to her family is very important.
Particulars of information put to the applicant pursuant to s.359AA of the Act
The Tribunal put particulars of information from documents restricted under the 375A Certificate to the applicant pursuant to s.359AA of the Act, after first explaining to her that this information would, subject to her comment and response, provide the reason, or part of the reason, for affirming the decision under review. The Tribunal explained to the applicant that she could request time to consider her response and that the Tribunal would consider any such request. The Tribunal explained that it had provided the gist of this information to the applicant at an earlier stage of the hearing and was now putting particulars of this information to her in accordance with the procedural fairness requirements provided for in the Act. The particulars of the information put to the applicant was that information on the Departmental file indicates her sponsor, Mr Christopher Jackson:
- sponsored a woman in relation to her application for a Combined Spouse (sc820/801) visa, which was granted in July 2000.
- sponsored a woman in relation to her application for a Provisional Partner (sc309) visa, which was granted in May 2007.
Upon clarifying the relevant dates pertaining to the first sponsorship, the Tribunal explained that the first woman sponsored applied for the visas in 2000, was granted a Subclass 820 Partner visa in March 2001 and a Subclass 801 Partner visa in July 2002.
The Tribunal told the applicant that if it relies on some or all of this information it may find that her sponsor is subject to the sponsorship approval limitations provided for in r.1.20J of the Regulations associated with the Act, which preclude a person from sponsoring a person for a partner visa, who has previously sponsored two people, who have successfully applied for a visa as the spouse, de facto partner or prospective spouse of that sponsor.
The Tribunal explained that if this was to be the case, and if it was not satisfied that there are compelling circumstances affecting her sponsor that make it appropriate to approve his sponsorship, the Tribunal may find that she does not meet essential criteria in cl.820.211 and cl.820.221, which require that she is, both at the time of application and at the time of the Tribunal’s decision, sponsored by a person, namely her husband, who is approved to be her sponsor.
The Tribunal explained that if it finds the applicant does not meet essential criteria in cl.820.211 and cl.820.221, it will affirm the decision to refuse the application for the Subclass 820 Partner visa.
The Tribunal adjourned the proceedings to allow time for the applicant to discuss with her representative whether she would seek further time to consider her response and after the brief adjournment she indicated she did not want further time to consider the response. The applicant said this is about the issue we discussed earlier in the hearing about her husband being a sponsor previously. She said this issue occurred a long time ago, over 10 years ago and that she has no further comments she wished to make about the issue.
Oral submissions from the representative
The representative asked the Tribunal to take further evidence from the sponsor regarding the impact upon his business if the sponsorship is not approved. The Tribunal noted that the sponsor had been provided with the opportunity to give whatever oral evidence he wished to the Tribunal. However, in the interests of providing the parties with a meaningful opportunity to put before the Tribunal evidence that they consider relevant, the Tribunal consented to this request.
Further oral evidence from the sponsor
The sponsor told the Tribunal that the applicant is his wife and they have now been together for over five years. He said that he cannot pack up his life and moved to Thailand. He said that he is 42 years old. He said that he has invested $250,000 into the business and that he does not want to pack up and go to Thailand. He said that if he was to do so he would lose money on the business.
The sponsor said that the applicant is strong and beautiful and that he loves her. He said that if he were to go to Thailand, he would also have less opportunity to visit his brother and his brother’s family who live in Queensland and would also not be able to visit his parent’s graves in Rookwood cemetery as frequently as he likes to. He said he would have no chance of getting a job in Thailand.
Applicant’s response to the sponsor’s further oral evidence
The applicant said that she agrees with everything the sponsor said and that she knows he cannot live away from Australia.
Further particulars of information put to the applicant pursuant to s.359AA of the Act
The Tribunal put to the applicant that the further oral evidence provided by the sponsor contained some inconsistencies with oral evidence he had previously provided and that this gave rise to some concern as to the reliability of his evidence. The Tribunal explained to the applicant that it was putting particulars of this information to her, pursuant to s.359AA of the Act for her comment. The particulars of the information put to the applicant were that the sponsor initially gave oral evidence that he would, if required, sell the business and accompany her to Thailand, whereas, the sponsor subsequently told the Tribunal that he would not be able to relocate to Thailand with the applicant. The Tribunal told the applicant this inconsistency in the sponsor’s evidence is relevant as it may impact on the weight the Tribunal places upon the evidence provided by the sponsor.
The applicant indicated she did not want further time to consider her response and said that previously when the sponsor gave further evidence, he became very emotional. She said that talking about the impact upon their business and about how he would personally be impacted if the sponsorship is not approved distressed him. She said that in summary, she and the sponsor do not want to sell their business or move back to Thailand.
Further oral submissions from the representative
The representative referred the Tribunal to the written submissions provided with the review application and summarised this submission. He submitted that the evidence indicates the sponsor has previously sponsored two partners where relevant permission was granted, but that there is no evidence to demonstrate the sponsor was not at that time in genuine relationships. The representative submitted that that there is no evidence to support a contention the sponsor is a serial sponsor. The representative submitted that the fact that one of the people previously sponsored by the applicant did not remain in Australia and the overall length of time since the previous sponsorships supports the contention the sponsor is not a serial sponsor.
The representative submitted that the issue for the Tribunal to consider is whether the sponsorship limitation should be waived and that several factors should be taken into account when considering this issue. The representative submitted that these include the long-standing nature of the parties’ relationship. The representative submitted that consideration of the length of the parties’ relationship is not a time of application issue and that the overall length of the relationship at the time of decision is the relevant consideration for the Tribunal and that this is consistent with the approach taken in relation to other provisions of the Act where compelling and compassionate circumstances are under consideration.
The representative submitted a further factor that would be detrimental to the sponsor if the sponsorship is not approved is the adverse impact that would occur if his business were to be sold in a fire sale, as the evidence demonstrates he has invested around $250,000 in the business. The representative submitted further ways in which there would be a detrimental effect on the sponsor, if he were to accompany the applicant to Thailand so that they could remain together, is the restriction on his ability to visit his parent’s graves that would result and also the diminished contact he would be able to have with his brother and his brother’s family in Queensland.
In relation to the Tribunal putting further information to the applicant pursuant to s.359AA of the Act, in which it is suggested that there was inconsistency in the sponsor’s evidence, as to whether or not he would accompany the applicant to Thailand if the sponsorship is not approved, the representative submitted that the sponsor did not change his evidence with regard to this issue and was speaking figuratively, rather than literally, when he said he could not leave Australia and go to Thailand with the applicant.
The representative submitted that it would be very distressing and difficult for the parties if they were to be separated and that this is apparent by the applicant’s evidence that they spend most of their time together and the sponsor’s evidence that he considers the applicant to be beautiful.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant’s sponsor meets the sponsorship requirements.
The Tribunal has not made any critical assessment of whether the parties are in a genuine, continuing and exclusive relationship. The Tribunal has accepted at face value the claims made by the parties that they are in a genuine relationship together and the circumstances of that claimed relationship for the purposes of this decision.
Is the applicant sponsored?
Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub-criteria. These include cl.820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations).
The applicant is sponsored by her husband. The Tribunal is satisfied that her husband is over 18 and is an Australian citizen. On the evidence before it the Tribunal finds that the requirements of cl.820.211(2)(c) are met.
At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl.820.221.
Clause 820.221(4) requires that the sponsorship referred to in cl.820.211(2)(c) has been approved and is still in force.
Approval of sponsorship is subject to limitations contained in r.1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in r.1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by r.1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010, and r.1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.
Regulation 1.20J of the Regulations sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship. Under r.1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a Partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the family violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of five years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: r.1.20J(2).
The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.
The legislative intention of r.1.20J can be found in the Explanatory Statement which indicates that the Minister can approve sponsorships or nominations if ‘compelling circumstances’ affecting the sponsor exist (Explanatory Statement to SR 1996 No. 211 - Migration Regulations (Amendment) 1996 No. 211). These include:
·The previous spouse or interdependent partner has died.
·The previous spouse or interdependent partner has abandoned the sponsor or nominator and there are children requiring care and support.
·The new relationship is long-standing.
·There are dependent children of the new relationship.
These examples are not exhaustive. Departmental guidelines emphasise that the purpose of the sponsorship limitation is to prevent abuse of the partner migration provisions. Departmental guidelines also emphasise that every aspect of the sponsor’s circumstances is relevant to the existence of compelling circumstances and that no definitive list can be given. The guidelines, do, however, note the following aspects which may be particularly important (PAM3: Div 1.4B/Reg. 1.20J at [7.1 – 7.2]).
· the nature of the hardship or detriment that would be suffered (by the sponsor) if the sponsorship were not approved; and
· the extent and importance of the ties the sponsor has to Australia, and the consequent hardship or detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.
The Tribunal first considered whether the review applicant’s circumstances included those in the Explanatory Statement for r.1.20J.
The evidence demonstrates that the sponsor previously sponsored a woman in relation to her application for a Combined Spouse (Subclass 820/801) visa, which was granted in July 2002; and a woman in relation to her application for a Provisional Partner (Subclass 309) visa, which was granted in May 2007. The Tribunal is satisfied that these previous visa applicants were respectively granted a relevant permission, in relation to a Combined Spouse (Subclass 820/801) visa and a Provisional Partner (Subclass 309) visa on the basis of their being, at the time, the spouse of the sponsor. Accordingly, as the sponsor has previously successfully sponsored two former spouses the Tribunal finds that the approval of this sponsorship is limited under r.1.20J.
Regulation 1.20J(2) however provides that the Tribunal may approve the sponsorship of an applicant if the Tribunal is satisfied that there are compelling circumstances affecting the sponsor.
Neither of the women the sponsor previously sponsored is reported to be deceased. Both of these previous marriages and a third marriage are reported to have ended in divorce. The Form 40SP ‘Sponsorship for a partner to migrate to Australia’ provided to the Department with the visa application states there was a child from the sponsor’s third marriage and also a child from the sponsor’s union with the second woman he successfully sponsored for a Partner visa. However, there is no evidence before the Tribunal to demonstrate the sponsor has any care responsibilities towards these children, or as to any detrimental impact on him, in terms of these children, if the sponsorship is not approved.
The length of the parties’ relationship
The representative contends the duration of the relationship should be determined by reference to the time of decision, rather than the time of application and the Tribunal accepts this is correct. There is inconsistent information as to whether a committed relationship between the parties began in 2013 or 2015. The visa application states the parties met in Thailand in October 2013 and committed to a relationship with each other to the exclusion of all others in August 2015. The applicant’s statutory declaration declares she and the sponsor lived together in Thailand in November 2013, as does the sponsor’s statutory declaration and he adds that they married, in Australia, in October 2015. In her oral evidence, the applicant said that she and the applicant lived together for around a year in Thailand before he returned to Australia in 2014 and following this she visited him in Australia and that she has lived with him permanently from around December 2015.
The applicant’s representative submits a previous migration agent erroneously identified 27 August 2015 as the date the parties commenced a de facto relationship. The Tribunal is not satisfied the evidence demonstrates they commenced a de facto relationship shortly after meeting each other in 2013, however it is apparent that the applicant and her sponsor are in a long-standing relationship and the Tribunal has placed some weight on this factor.
The Tribunal accepts the parties’ evidence that they are in an emotionally close and supportive relationship and that the sponsor experiences distress and emotional longing if parted from the applicant for even brief periods, such as when she visits her home country to spend time with her parents.
The parties contend that they do not wish to part if the sponsorship is not approved and that the applicant would in that circumstance accompany the sponsor to Thailand. The sponsor’s oral evidence with regard to this issue was not entirely consistent and particulars of this inconsistency were put to the applicant pursuant to s.359AA of the Act. The Tribunal is satisfied the applicant provides a credible explanation for the inconsistency in the sponsor’s evidence and that their claim is that whilst they do not wish to sell their Australian business, or leave Australia, they would in the event the sponsorship is not approved and the Partner visa is refused, both relocate to her home country so that they could remain together.
The parties claim this will have a range of adverse consequences affecting the sponsor that cumulatively provide compelling circumstances as to why the sponsorship should be approved.
The impact on the sponsor’s business enterprises
The Tribunal accepts the sponsor has established a number of business entities involved in offering flood restoration, rehabilitating water damage, biohazard decontamination and related services. The Tribunal accepts the applicant has involvement in some of these entities, through roles as an office holder, bookkeeper and customer service. The Tribunal accepts that the businesses have no employees and that they are run by the sponsor, with the assistance of the applicant.
The parties claim the sponsor has invested $250,000 into these businesses and that the business revenue in the 2018 financial year was $618,454, with operating expenses amounting to around $400,000. The parties claim that the businesses operate in a fairly specialised industry sector, where it would be apparent any sale of the business, as a consequence of their needing to relocate to Thailand because the sponsorship was not approved, would be a ‘fire sale’, where they would not get a normal market value, estimated on a one to one equivalence with the annual revenue from the business. In the event of their being a ‘fire sale’, the parties estimate the value would approximate a third of the value of the annual revenue. The Tribunal estimates the approximate return the sponsor could expect from the sale of his business entities, on the basis of the evidence provided by the parties, to amount to around $206,000.
The Tribunal accepts that the sponsor would suffer financial consequences from ceasing his involvement with these business entities as a consequence of relocating to Thailand with the applicant and has given some weight to this factor.
The length of time between the sponsorships
The Tribunal notes the applicant’s claims with regard to the length of time between the sponsor’s previous sponsorships and the length of time since he last sponsored a woman to come to Australia on a Partner visa. The initial sponsorship was approved in 2002 and the second was in 2007. The Tribunal is not however persuaded this provides a compelling circumstance to approve the current sponsorship. The provisions of r.1.20J specifically set a limit on the number of people that a person can sponsor in a lifetime and there is no indication that the term lifetime should be accorded any other meaning than the plain English meaning of this term.
The departure from Australia of one of the women previously sponsored
The Tribunal notes the applicant’s claims with regard to the circumstance whereby one of the women previously sponsored by the sponsor did not remain in Australia and acknowledges this may be an indicator the sponsor has not had the intent of facilitating pathways to permanent residency in Australia for reasons other than his wish to find a partner with whom he can maintain an interpersonal, committed relationship. The Tribunal is not however persuaded the departure of one of the women the sponsor previously sponsored to migrate to Australia on a Partner visa provides a compelling circumstance to approve the current sponsorship.
The sponsor’s lack of Thai language skills
The applicant gave oral evidence during the hearing that the sponsor does not speak the Thai language. The sponsor gave consistent oral evidence with respect to this issue. They contend this would contribute to the difficulty he would experience if he accompanied the applicant to Thailand due to the sponsorship not being approved. The Tribunal has placed only limited weight upon this factor, as the evidence would suggest the sponsor has resided previously in Thailand for up to 12 months and there is no indication he did not do so in an efficacious manner. The Tribunal notes that in the statutory declarations the parties provided with the review application, they also both declare the sponsor has a limited grasp of the Thai language.
The difficulty the applicant would have finding work in Thailand
The applicant gave oral evidence that the sponsor would have limited employment prospects in Thailand, because of his lack of Thai language skills. This is consistent with the sponsor’s oral evidence. He claims he had difficulty finding suitable employment when he was last in Thailand, but nonetheless earned an income there. The sponsor is reported to have worked for 17 years in senior executive roles in a range of Tier 1 enterprise organisations, prior to establishing his own company in or around 2015. The evidence suggests the sponsor is a resourceful person, with extensive experience in a range of settings both in Australia and overseas. The Tribunal is not satisfied that the evidence demonstrates why he would be unable to again earn an income in Thailand, as he has done previously. As a consequence, the Tribunal has placed only limited weight upon this factor.
The financial hardship the parties would experience in Thailand
The applicant claims the parties would experience financial hardship if they were forced to relocate there. The Tribunal accepts that they may experience financial consequences as a result of the loss of an income stream from the flood restoration businesses, given the disparity between the Australian and Thai economies. However, the Tribunal is not satisfied the evidence establishes that the sponsor would be subjected to financial hardship, as he has demonstrably been able to earn an income during a previous period in which he resided in Thailand and the applicant is reported to have a good employment history in her home country, in a law firm. The applicant has also indicated that she and the sponsor would try and open a business in Thailand if the sponsorship is not approved.
The impact of a Thai diet on the sponsor
The applicant expressed concern as to the impact of the Thai cuisine on the sponsor during the period he previously resided in her home country. She indicated he required hospital treatment for gastrointestinal problems. The Tribunal accepts this evidence but is not persuaded the sponsor would not have dietary choices available to him such that the potential for future illness could not be managed in a proactive manner.
The sponsor’s lack of cooking skills
The applicant expressed concern as to the sponsor’s limited dietary intake when she is not around to prepare his meals. She indicated he essentially subsists on yoghurt. The Tribunal notes that this concern was discussed in the context of the parties facing potential separation as a consequence of the refusal of the sponsorship and that this would appear to be a hypothetical circumstance, as notwithstanding some inconsistencies in the sponsor’s evidence, it would appear they intend to remain together and relocate to Thailand in the event the sponsorship is not approved and the Partner visa is refused.
The financial support provided by the sponsor to the applicant’s family in Thailand
With respect to this issue, the Tribunal notes the provisions in r.1.20J which provide for the approval of sponsorships or nominations if compelling circumstances affecting the sponsor exist. The Tribunal accepts that the financial circumstances of the parties in Australia allows the applicant to remit regular amounts to her family in Thailand and that the sponsor has also funded necessary medical treatment for the applicant’s mother and bought a car for her father. The Tribunal acknowledges the gratitude that is likely felt by the applicant and her family for the financial support that has accrued from her relationship with the sponsor, but has placed no weight upon this aspect of this factor. The Tribunal does acknowledge the sponsor may experience a degree of satisfaction from his contribution to the applicant’s family’s welfare and also accrue some benefit from the applicant’s gratitude to him with respect to this issue.
The beauty of the applicant
The sponsor gave evidence that the applicant is a strong and beautiful woman and that he loves her. The Tribunal acknowledges the positive regard the sponsor has for the applicant in general and his emphasis upon her physical beauty. The Tribunal accepts this is an important factor for the sponsor but is not otherwise persuaded the physical appearance of the applicant provides a compelling circumstance affecting the sponsor to approve the sponsorship.
The impact on the parties’ pet dogs
The Tribunal accepts the parties have two pet dogs and that there would be an emotional impact on the sponsor in the event they could not take these pets to Thailand if he were to accompany the applicant there if the sponsorship is not approved and the Partner visa is refused. The Tribunal has placed some weight on this factor, but is not satisfied that the impact it would have upon the sponsor provides a compelling circumstance to approve the sponsorship.
Contact between the applicant and his relatives in Australia
The Tribunal accepts the sponsor maintains contact with his brother and brother’s family in Queensland and that there may be an impact upon the frequency and overall amount of direct contact as a consequence of him accompanying the applicant to Thailand. The Tribunal has however placed only limited weight on this circumstance. The Tribunal accepts there would be added costs involved in any travel the sponsor undertook to visit relatives in Australia, but as the Tribunal is not persuaded the sponsor would be affected by any significant degree of financial hardship if he were to accompany the applicant to Thailand, it is not apparent that his capacity to visit his relatives in Australia would be under any significant constraint. It would also be open to the sponsor to maintaining regular, meaningful contact with his relatives in Australia through social media and other electronic means.
The sponsor’s visits to his parent’s graves in Rookwood cemetery
The Tribunal accepts the sponsor visits his parent’s graveside at Rookwood cemetery. The Tribunal has however placed only limited weight on this circumstance as, for similar reasons as are discussed in the preceding paragraph, the Tribunal is not persuaded there would be a serious constraint upon the sponsor returning to Australia upon important anniversary dates or otherwise visiting the graveside when he is in Australia for other reasons.
Overall assessment of compelling circumstances affecting the sponsor
When considering the circumstances leading to the start of the parties’ relationship, the duration of the relationship, the emotionally supportive nature of the relationship, the current aspects of the relationship and the overall history of the relationship, the Tribunal has accorded some weight to these factors but is not persuaded they provide sufficiently compelling circumstances to approve the sponsorship.
The Tribunal accepts there would be a financial impact on the sponsor from selling his Australian businesses and as a result of the parties operating a business, or seeking employment in the applicant’s home country. The Tribunal is not persuaded the extent of this financial impact would result in financial hardship for the sponsor or that it is sufficient to provide a compelling circumstance to justify not applying the sponsorship limitation. The Tribunal has also given some weight to the impact on the sponsor from complications arising from decisions which may need to be made about the parties’ pets in the event they relocate to Thailand and other factors as outlined above.
The Tribunal has considered the extent and importance of the ties the sponsor has to Australia and acknowledges the businesses he has established provide a valuable service and make a worthwhile contribution to the Australian economy. However, given there would appear to be the capacity to sell the businesses, albeit in a ‘fire sale’, it would not appear the services offered by the businesses would cease to be available. The Tribunal accepts the sponsor’s contact with his relatives in Australia may be impacted if he was to move to Thailand, but is not persuaded any such impact could not be ameliorated by the range of ways people maintain meaningful contact over distance in the modern world.
The Tribunal has assessed the circumstances as to the detrimental impact upon the sponsor of the sponsorship not being approved, both individually and cumulatively. As set out above, the Tribunal is not satisfied that any of the individual circumstances claimed by the parties provide a compelling circumstance affecting the sponsor which would justify not applying the sponsorship limitations. When considered in combination, the Tribunal is not satisfied that the total circumstances have the forceful and powerful quality that would lead the Tribunal to make a positive finding which would allow approval of the sponsorship.
As the Tribunal has concluded the applicant does not meet the sponsorship requirement in r.1.20J(1) and is not satisfied the criterion in r.1.20J(2) that would allow the sponsorship to be approved are met, on the evidence before the Tribunal, the requirements of cl.820.221 are not met.
The Tribunal finds the alternative sub-criteria in cl.820.211(7), cl.820.211(8), cl.820.211(9) and cl.820.221(2) are not satisfied.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
David Barker
Member
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
0
4
0