Seelarak (Migration) - [2024] ARTA 110

Seelarak (Migration) [2024] ARTA 110 (18 November 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Daronchorn Seelarak
Respondent:  Minister for Home Affairs
Tribunal Number:  2109005

Tribunal:General Member Kate Malyon
Place:Sydney
Date: 18 November 2024
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.

I, General Member Kate Malyon, certify that this is

the Tribunal’s statement of decision and reasons.
Statement made on 18 November 2024 at 1:56 pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – sponsorship form has been provided – Tribunal is satisfied that the sponsorship requirement in cl 820.211(2)(c) of Schedule 2 to the Regulations is met – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.09, 2.03A, Schedule 2, cls 820.211,820.221
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 July 2021 to refuse to grant the visa applicant, Thai national Ms Daronchorn Seelarak, a Partner (Temporary) (Class UK) Subclass 820 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Ms Seelarak applied for the visa on 28 March 2020 on the basis of her relationship with her sponsor Achiraya Seelarak Terry. Ms Terry is an Australian citizen. At that time, Class UK contained only one subclass: Subclass 820 (Partner). Criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevant provisions of the Act and the Regulations referred to in this decision are set out in the Attachment to the decision.
The delegate refused to grant the visa on the basis that Ms Seelarak did not satisfy
cl 820.211(2)(c) and cl 820.221 of Schedule 2 to the Regulations because she was not satisfied that Ms Seelarak was sponsored by her spouse or de facto partner to migrate to Australia. A copy of the delegate’s decision was provided to the Tribunal together with the review application. Ms Seelarak was represented in relation to the review.
The matter was set down for hearing on 21 November 2024. However, no hearing was held in this case because the Tribunal determined it was able to make a favourable decision on the material before it.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. Consistent with cl 8.2 of the President’s Direction Conducting Migration and Refugee Reviews dated 1 August 2018, the Tribunal has restricted its review to the matter the subject of the delegate’s decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, at the time of application the applicant was sponsored by her spouse or de facto partner to migrate to Australia.
Background
Ms Seelarak made a valid application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa on 28 March 2020. She stated in her online Application for migration to Australia by a partner form that she was in a partner relationship with an Australian citizen, Achiraya Seelarak Terry. However, no evidence was provided of Ms Terry’s sponsorship of Ms Seelarak’s visa application, either by way of a hard copy Form 40SP or an online Sponsorship for a partner to migrate to Australia form.
As set out in the delegate’s decision, a copy of which was provided to the Tribunal, the Department wrote to Ms Seelarak via her representative on 28 January 2021 and again on 20 April 2021 requesting a Sponsorship for a partner to migrate to Australia form be provided. Subsequently, on 20 May 2021 the Department contacted the representative by telephone to follow-up the 2 earlier s 56 requests. The representative responded that he was aware of the required information but requested additional time to complete the online Sponsorship for a partner to migrate to Australia form. A further 28 days to provide the requested information was given to the representative.
However, no information was received from Ms Seelarak. As a consequence, the delegate was not satisfied that, at the time of application she was sponsored by her claimed partner Ms Terry. Accordingly, the delegate found on 7 July 2021 that Ms Seelarak did not meet
cl 820.211(2)(c) of Schedule 2 to the Regulations.
Following refusal of her Subclass 820 visa application, Ms Seelarak sought review in the Tribunal. Accompanying the review application was a downloaded screenshot from the Department’s website confirming that on 8 July 2021 the representative had lodged Ms Terry’s online Sponsorship for a partner to migrate to Australia. The reference number quoted is EGORB0VDMX.
Prior to constitution of the matter to the Member, a hearing was scheduled for 21 November 2024. In response to the hearing Tribunal’s invitation, the representative provided extensive documentation including a further copy of Ms Terry’s online Sponsorship for a partner to migrate to Australia together with multiple documents to address the genuineness of the couple’s de facto relationship at the time of application and their spousal relationship at the time of decision. He indicated that further evidence of bank account statements evidencing Ms Terry’s ongoing financial support for Ms Seelarak would be provided. The couple were married on 24 June 2020 at the NSW Registry of Births, Deaths and Marriages in Sydney as confirmed by the couple’s Marriage Certificate provided to the Tribunal.
In his submission, the representative confirms that the reason for refusal of Ms Seelarak’s visa is due to ‘a series of administrative errors’ made by him. He states that he has:
‘no satisfactory explanation for the administrative oversights, particularly the errors at initial lodgment (sic) of the visa application and then missing the first s 56 RFI. Failure to address subsequent RFIs were influenced by the trauma of my father’s decline. My father … had a fall and lost his spleen on 11 March 2021 and cyclically declined in health until his death on 1 June 2021 (see attached death certificate). I was heavily involved in his daily support during this period, at the local Bega and Pambula hospitals for initial surgery, recovery and rehabilitation, and then palliative care. And for an extended period at the ICU of St George’s hospital in Sydney. In hindsight I lost focus on my work responsibilities and took far longer than expected to emotionally and psychologically recover from.
…
I am frankly mystified and ashamed of missing multiple Immigration RIFs in this case, something that has never happened before, or since.’
The representative also provided a detailed chronology of his father’s decline in health, his transfer by helicopter to the ICU at St George Hospital on 12 March 2021, his later transfer to Bega Hospital and then being placed in palliative care.
Is the applicant sponsored?
Clause 820.211 of Schedule 2 to the Regulations 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 applicant’s spouse or de facto partner, 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 reg 1.03 of the Regulations).
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 of Schedule 2 to the Regulations.
Approval of a sponsorship is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in their lifetime and a minimum time that must lapse between each sponsorship, and in reg 1.20KA of the Regulations 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 reg 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 reg 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.
On 15 November 2024, the representative provided to the Tribunal a copy of Ms Terry’s Sponsorship for a partner to migrate to Australia reference number quoted is EGORB0VDMX which was lodged with the Department on 8 July 2021. The Tribunal finds that at the time of this decision, the sponsorship form has been provided. Although that form was not submitted when the application was made, the Tribunal is mindful of immigration policy set out in the Procedures and Advise Manual (PAM) that there is no statutory requirement for the sponsorship to be evidenced through any particular form and that a Subclass 820 visa can be made without any accompanying sponsorship form completed by the sponsor, unless the applicant is a person to whom s 48 of the Act applies.
Having regard to evidence provided, the Tribunal finds that Ms Seelarak is sponsored. In the absence of any evidence to the contrary, the Tribunal finds that submission of the sponsorship form subsequent to the time of application evidences the sponsor Ms Terry’s intention to sponsor Ms Seelarak at the time the visa application was made and also evidences the act of sponsorship. Accordingly, the Tribunal is satisfied that the sponsorship requirement in cl 820.211(2)(c) of Schedule 2 to the Regulations is met.
As noted above, cl 820.211 of Schedule 2 to the Regulations also requires the applicant to be sponsored by their ‘spouse’ or ‘de facto partner’. No assessment has been made in this case by the delegate as to whether Ms Seelarak and Ms Terry are spouses or de facto partners. In the Tribunal’s view and consistent with the President’s Direction referred to above, that assessment is more appropriately undertaken by the Department in the first instance. For that reason, the Tribunal does not make a finding that cl 820.211 of Schedule 2 to the Regulations is met in its entirety. However, it will provide to the Department all of the documentation submitted by the representative on 15 November 2024 addressing the genuineness of the couple’s claimed de facto or spousal relationship.
Conclusion
On the evidence before the Tribunal the requirement in cl 820.211(2)(c) of Schedule 2 to the Regulations is met.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
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.
Kate Malyon
General Member
Date(s) of hearing:  Not applicable
Representative for the Applicant:           Mr Lachlan Robert McPhail (MARN: 9474375)
ATTACHMENT - Extracts from Migration Act 1958 and Migration Regulations 1994
Migration Act 1958
5CB De facto partner
(1) De facto partner For the purposes of this Act, a person is the  de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
(2) De facto relationship For the purposes of subsection (1), a person is in a  de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
(4) Definition For the purposes of paragraph (2)(d), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an   adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
…
5F Spouse
(1) For the purposes of this Act, a person is the spouseof another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note:   Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
…
Migration Regulations 1994
…
1.09A De facto partner and de facto relationship
(1)For subsection 5CB(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB(2) (a), (b), (c) and (d) of the Act exist.
   Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.
   Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person
whether of the same sex or a different sex) if the person is in a de facto relationship with the other person. Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3) The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being married to each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
…
1.15A     Spouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being married to each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
…
2.03A     Criteria applicable to de facto partners
(1)In addition to the criteria prescribed by regulations 2.03 and 2.03AA, if a person claims to be in a de facto relationship for the purposes of a visa application, the criteria in subregulations (2) and (3) are prescribed.
(2)         If a person mentioned in subregulation (1) applies for a visa:
(a)  the applicant is at least 18; and
(b)  the person with whom the applicant claims to be in a de facto relationship is at least 18.
(3)         Subject to subregulations (4) and (5), if:
(a)  a person mentioned in subregulation (1) applies for:
(i)  a permanent visa; or
(ii)  a Business Skills (Provisional) (Class UR) visa; or
(iia)  a Business Skills (Provisional) (Class EB) visa; or
(iib)  a Skilled Employer Sponsored Regional (Provisional) (Class PE) visa; or
(iii)  a Student (Temporary) (Class TU) visa; or
(iv)  a Partner (Provisional) (Class UF) visa; or
(v)  a Partner (Temporary) (Class UK) visa; or
(vi)  a General Skilled Migration visa; and
(b) the applicant cannot establish compelling and compassionate circumstances for the grant of the visa;
the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.
(4)         Subregulation (3) does not apply if the applicant applies on the basis of being:
(a)  in a   de   facto   relationship with a person who:
(i)  is, or was, the holder of a permanent humanitarian visa; and
(ii)  before the permanent humanitarian visa was granted, was in a de facto relationship with the applicant and informed Immigration of the existence of the relationship; or
(b)  in a de facto relationship with a person who is an applicant for a permanent humanitarian visa.
(5)Subregulation (3) does not apply if the de facto relationship is a registered relationship within the meaning of section 2E of the Acts Interpretation Act 1901.
..
Schedule 2
Subclass 820 -- Partner
820.21- Criteria to be satisfied at time of application
820.211 (1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
   (b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(b) [repealed]
   (c) the applicant is sponsored:
(i) if the applicant's spouse or de facto partner has turned 18 - by the spouse or de facto partner; or
(ii) if the applicant's spouse has not turned 18 - by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) in the case of an applicant who is not the holder of a substantive visa - either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
…
820.22 - Criteria to be satisfied at time of decision
820.221 (1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a) continues to meet the requirements of the applicable subclause; or
   (b) meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if the applicant:
(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and
(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(c) has developed close business, cultural or personal ties in Australia.
(3) An applicant meets the requirements of this subclause if:
(a) the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act1975relating to;
  at least 1 child in respect of whom the sponsoring partner:
(C) has been granted joint custody or access by a court; or
  (D) has a residence or contact order made under the Family Law Act 1975; or
(E) has an obligation under a child maintenance order made under the Family Law Act1975, or any other formal maintenance obligation.
Note: For special provisions relating to family violence, see Division 1.5.
(4) If paragraph 820.211(2)(c), (5)(f) or (6)(c) requires the applicant to be sponsored:
(a) the sponsorship has been approved by the Minister and is still in force; and
(b) the sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC(2)).
Note 1: Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister's discretion to approve sponsorships.
Note 2: The sponsor may be asked to consent to the disclosure mentioned in paragraph (b) on the approved form required to be completed by the sponsor in relation to the visa application.
(5) For the purposes of subclause (4), the conviction of the sponsor for a relevant offence is to be disregarded if:
(a) the conviction has been quashed or otherwise nullified; or
   (b) both:
              (i) the sponsor has been pardoned in relation to the conviction; and
(ii) the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.
…
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