Saentong (Migration)

[2019] AATA 947

Saentong (Migration) [2019] AATA 947 (1 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Phiyamat Saentong

CASE NUMBER:  1714985

HOME AFFAIRS REFERENCE(S):           BCC2015/2959518

MEMBER:Adrienne Millbank

DATE:1 March 2019

PLACE OF DECISION:  Brisbane

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

·cl.820.211(2)(c) of Schedule 2 to the Regulations

·cl.820.221(4) of Schedule 2 to the Regulations.

Statement made on 01 March 2019 at 3:10pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – overseas work – adjournment granted – five-year limitation lapsed at time of rescheduled hearing – genuine de facto relationship – declined to make a positive finding –insufficient evidence provided to the Tribunal –  decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 1.20J; Schedule 2, cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for 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).

2. The applicant was born in Thailand in 1987 and is 31 years old at the time of decision. She first arrived in Australia in 2009 on a Visitor visa. She was granted a working holiday visa in 2014, and has worked as a waitress in Australia. Before coming to Australia she worked in the hospitality industry including as a spa hostess, in Bangkok in Thailand; in Geneva in Switzerland; and in Qatar.

3. The sponsor was born in Australia in 1966 and is 52 years old at the time of decision. At the time of application he declared three earlier relationships, including one marriage. He described himself, in a CV provided to the Tribunal, as ‘Scientist, Barrister, Mediator and Strategic Environmental and Legal Adviser’.  He is a former Member of the Tribunal. At the time of decision he worked as a consultant on environmental projects, including for the United Nations Development Fund.

4. The parties claim they first met on 17 December 2014, at a Thai restaurant, when the sponsor, who lives in Brisbane, was in Melbourne for three days on business, and the applicant was living and working as a waitress in Melbourne. They claim that they subsequently communicated via WhatsApp, and that they committed to a shared life to the exclusion of all others on 1 March 2015 when the applicant moved to Brisbane to live in the sponsor’s house.  The sponsor withdrew his sponsorship of his previous partner on 1 June 2015.

5. The applicant’s Working Holiday visa expired on 15 October 2015. She applied for the visa on 10 October 2015, on the basis of her claim to be in a de facto relationship with the 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).

6. The Delegate refused to grant the visa on the basis that the visa applicant did not meet cl.820.221(4). The sponsor had lodged an application to sponsor a previous partner on 18 December 2013, within five years of this application, and the Delegate found that he was affected by the limitation imposed by r.1.20J.

7. 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 domestic 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).

8. The Delegate was not satisfied that there were compelling circumstances to waive the limitation.

9. For the following reasons, the Tribunal has concluded that the decision under review must be remitted for further consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 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).

11. 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: c.820.221.

12. 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.120KA 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 were 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.

13. While the issue in the Delegate’s decision, and argued by the parties up to the day of the hearing, was whether there were compelling circumstances to waive the sponsorship limitation, by the time of decision the issue before the Tribunal had become whether the limitation mandated in r.1.20J of the Regulations still applied to the sponsor.

    The issues before the Tribunal and the time of decision

14. The case was constituted to a Member of the Tribunal on 6 September 2018. On 7 September 2018 the Tribunal invited the applicant, through her representative, to attend a hearing scheduled for 27 September 2018.

15. On 10 September 2018 the Tribunal received a submission from the parties’ representative, sent with high importance, requesting an adjournment of the hearing until January 2019. The representative advised the Tribunal that the sponsor had work commitments requiring him to be overseas until the end of December 2018. The representative argued that, as the review application was focused solely on whether there were any compelling reasons affecting the sponsor, the evidence and presence of the sponsor at hearing was crucial to the case for why the sponsorship limitation should be waived. The representative claimed ‘we are not aware of any consideration weighing in favour of an immediate decision on the review’.

16. A written submission from the sponsor dated 8 September 2018 was attached, in which he claimed ‘I am booked with travel until the end of December 2018’. He further claimed ‘I regret to ask the Tribunal for this adjournment and I want to work with the Tribunal to seek a speedy resolution to this matter; however the demands of my work require me to be overseas a lot’. Excerpts from emails discussing a project in Liberia, and copies of airline bookings were attached.

17. On the basis of the submissions provided, the Tribunal agreed to the request, and rescheduled the hearing for 10.30 am on 8 January 2019.

18. On 28 December 2018 a nine-page statutory declaration signed by the sponsor, and a five page statutory declaration signed by the applicant, were provided by the parties’ representative, who advised that her agency ‘will also be forwarding a submission to the Tribunal in due course’. The parties’ declarations addressed the issue of compelling circumstances, and included new claims arising from the sponsor’s father’s illness and move into a nursing home in August 2018.

19. Further supporting documents were provided, bundled under labels A to M, in support of the parties’ claim to compelling circumstances. These included evidence and correspondence with the Department regarding the failure of the sponsor’s relationship with his previously sponsored partner, and evidence of relationship.

20. On 8 January 2019, the day the hearing, the Tribunal received another submission from the parties’ representative which further addressed the issue of compelling circumstances, and provided more documents in support of the parties’ claims to a waiver because of compelling circumstances affecting the sponsor, under r.1.20J(2). In this document the representative pointed out that five years had elapsed since the lodgement of the sponsor’s previous sponsorship on 18 December 2013; that the sponsor was no longer affected by the limitation in r.1.20J; that the Tribunal should remit the matter with the direction that the applicant satisfied cl.820.221(4); and that the issue of compelling circumstances was not relevant to the Tribunal’s decision.

21. Asked at hearing why the parties and their representative submitted many written submissions and many tens of pages of supporting documents on the issue of compelling circumstance, if it was irrelevant, the representative advised that this was for ‘completeness’.

22. The representative at hearing and in her submissions received on 8 January 2019, the day of the hearing, and on 14 January 2019, after the hearing, requested the Tribunal not to confine itself to the issue of the Delegate’s decision. The representative submitted that sufficient evidence was before the Tribunal regarding the genuineness of the parties’ relationship for the Tribunal to remit the decision with the direction that the applicant met the requirements of cl. 820.211(2) as well as cl.820.221(4).

23. The representative acknowledged at hearing that the hearing delay sought by the parties worked in their favour. She submitted that the sponsor did in fact travel overseas between September and December 2018, and the fact the hearing was not able to be listed until after the expiry of the five-year period mandated in r.1.20J was ‘wholly a function of the Tribunal’s listing processes and case load’.

24. The sponsor’s international movement records indicate that he was in Australia from 1 to 16 September 2018; from 21 October to 14 November 2018, and that he has been in Australia since 2 December 2018. The Tribunal acknowledges the sponsor’s explanation, in a statutory declaration signed on 10 January 2019 provided to the Tribunal after the hearing, that his overseas work plans changed, but notes that he did not advise the Tribunal of his availability in September, October, November or early December, despite his claim of 8 September 2018 that ‘I want to work with the Tribunal to seek a speedy resolution to this matter’.    

25. The Tribunal accepts the representative’s arguments that it would be legally irrelevant and therefore erroneous to revisit the appropriateness of the adjournment; that there was no direct legal obligation on the Tribunal to grant the adjournment; and that the reasons for the adjournment have no bearing on whether r.1.20J applies at the time of decision.

26. The Tribunal finds that more than five years have elapsed since the date of making the first sponsorship application on 18 December 2013, to this decision. Accordingly, the sponsorship limitation of r.1.20J no longer applies.

27. The applicant is sponsored by her de facto partner who was over the age of 18 at the time of application. Therefore the applicant meets cl.820.211(2)(c).

28. The Tribunal is satisfied that there is no information before the Tribunal that suggests that the sponsorship limitations of r.1.20K, r.1.20KB or r.1.20KC prevent approval. Therefore, the applicant meets cl.820.221(4).

    Were the parties in a genuine de facto relationship at the time of application and decision?

29. The Tribunal did not accept the representative’s request to make a positive finding regarding the nature of the parties’ relationship, for two reasons. Firstly, while the Tribunal might have the power to conduct de novo reviews, this issue did not form part of the Delegate’s decision and was not before the Tribunal. Secondly, while the Tribunal acknowledges (and acknowledged at hearing) that the parties were in a relationship, and have been in a relationship for four years, insufficient evidence was provided for the Tribunal to be satisfied that the relationship the parties were in, at the time of application and decision, was a genuine de facto relationship as defined in s.5CB.

30. Indeed, while the issue of the genuineness of the parties’ relationship will be a matter to be assessed by a Delegate, the Tribunal noted potential deficiencies in the applicant’s case, as set out below, in relation to the matters to be considered r.1.09A.

31. Regarding the financial aspects of the relationship, on the evidence available the parties have not pooled their financial resources. At hearing the sponsor confirmed that he and the applicant have no joint ownership of real estate or other major assets, or joint liabilities. He confirmed that his two properties, one of which he lives in with the applicant, are in his name only, and that his cars are registered under his business name. He advised that his property purchases predated his relationship with the applicant, but when he discussed the possibility of his purchasing his parents’ house, following negotiations with his sister, no indication was provided that he intends the applicant to have any involvement in this property dealing.

32. While evidence was provided that the parties had a joint bank account in 2016, no transactions were shown during the six months of the statement provided, apart from one deposit of around $4,000. Further, the applicant at hearing displayed little knowledge or understanding of the sponsor’s financial situation. When the Tribunal asked the applicant to describe the financial dislocation and loss the parties would suffer as a couple, should the decision be affirmed and she be required to lodge another application offshore, she responded that she would have to pay $7000 or $8,000 for another Partner visa application; that she would have to pay her airfare back to Thailand; and that she would have to find employment in Bangkok, which would be difficult as she had not worked there for some time. When the Tribunal pointed out that the sponsor has a substantial income, she stated that there were better things than visa applications to spend it on.

33. Regarding the nature of the household, the sponsor advised that he could provide no evidence of joint habitation such as utilities accounts in joint names, because his house is environmentally self-sustaining and operates ‘off the grid’ . He advised that the applicant manages his property when he is overseas, and that should she have to leave the country, he would have to give up his overseas work in order to maintain it, and would suffer a consequential loss of over 80 per cent of his income. He explained that he has invested a significant amount of money in the property; that it was next to impossible, because of its unique features, to find an acceptable caretaker; and that the applicant is used to caring for the house and garden.   

34. Regarding the social aspects of the relationship and the nature of the parties’ commitment to each other, the Tribunal notes that the representative claimed the applicant is a close and integral member of the sponsor’s family. The sponsor claimed that the applicant is particularly close to his father and that without the emotional support she has provided to his father since his illness and move into a nursing home in August 2018, his father’s health would have further declined.  At hearing however, when the applicant was asked what arrangements she and the sponsor had discussed together, as a couple, regarding the care of the sponsor’s father, the applicant stated that she had not had any involvement in arrangements for the care of the sponsor’s father. She advised that she didn’t speak with the sponsor’s father over the phone or the internet because they couldn’t understand each other. She further acknowledged that she had in fact seen the sponsor’s father only twice since his illness, in October 2018 and December 2018, when she visited his nursing home with the sponsor.

35. The Tribunal advised the applicant that it had difficulty understanding how her relationship with the sponsor began and developed so quickly. The applicant confirmed that she was working as a waitress in a Thai restaurant in Melbourne when the sponsor was there for three days on business. She confirmed that she entered into a sexual relationship with the sponsor during this visit. The Tribunal asked the applicant to further explain the rapid inception of the relationship, as she was 27 years old and at work and the sponsor was 49 years old and in Melbourne only briefly, on business, when they met at a restaurant on 17 December 2014. The applicant stated that the sponsor is talkative and she is not, and for this reason they were instantly compatible. She advised that she communicated with the sponsor via the internet before she moved to Brisbane, on 1 March 2015, to live in his house.

36. The Tribunal acknowledges that further evidence was provided, including that the parties have travelled together, and that the applicant was named as a (non-binding) beneficiary for a superannuation account in which the sponsor held around $300,000.  Photos were provided of the parties together, as well as statutory declarations from supporting witnesses.

37. The Tribunal further acknowledges that even if the applicant was motivated to enter into the relationship to obtain a permanent visa, this does not preclude the possibility of a genuine relationship. In this case the Tribunal observed that the parties have not pooled their resources consistent with a claim of having been in a genuine de facto relationship for four years.

38. As the issue of the genuineness of the relationship was not before the Tribunal, the Tribunal makes no finding on the relationship.

    DECISION

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

    • cl.820.211(2)(c) of Schedule 2 to the Regulations
    • cl.820.221(4) of Schedule 2 to the Regulations

    Adrienne Millbank
    Member