SIMNONMUANG (Migration)

[2022] AATA 125

SIMNONMUANG (Migration) [2022] AATA 125 (14 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Thiprat SIMNONMUANG
Master Eric SIMNONMUANG

CASE NUMBER:  1806374

HOME AFFAIRS REFERENCE(S):          BCC2015/4120081

MEMBER:Linda Holub

REPRESENTATIVE   John Theeradech Paopeng (MARN 0851174)

DATE:14 January 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

Statement made on 14 January 2022 at 3:45pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – family violence allegations – genuine spousal relationship at the time of application – inception of the relationship – separate payment of expenses – limited cohabitation – sponsor’s work for the applicant’s employer – limited joint travel – family financial support - social recognition of the relationship – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.03, 1.15, 1.20

CASES

He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The first named applicant (the applicant) applied for the visa on 24 December 2015 on the basis of her relationship with her sponsor. For the remainder of this decision, she will be referred to as ‘the applicant’ or ‘the review applicant’.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 and 801.221 because having considered all the evidence and information the applicant provided did not consider it was sufficient to demonstrate that the applicant was the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Migration Act.

4.    The first named applicant first appeared before the Tribunal on 7 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from one of the applicant’s sisters and from a colleague.

5.    A second hearing was held on 5 January 2022 via Microsoft Teams videoconference. The hearing was held by video because of the Covid-19 situation in NSW at that time. The Tribunal exercised its discretion to hold the hearing by video through the Microsoft Teams application. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that she had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6.    The applicant’s sister also gave oral evidence at the second hearing. The Tribunal hearings were conducted with the assistance of an interpreter in the Thai and English languages.

7.    The applicants were represented in relation to the review by their registered migration agent who attended both hearings.

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

BACKGROUND

9.    The sponsor was born in 1950 in Johore, Malaysia. He first arrived in Australia in November 1973. He obtained Australian citizen by grant in January 1980.The sponsor has declared one previous marriage from 1987 to 1998. He has a child from his previous relationship. 

1. The primary review applicant is a Thai national born in 1977. Department records indicate that she first arrived in November 2012 as a holder of a visitor visa and departed in January 2013. She returned to Australia in May 2013 as a holder of a Student visa which was valid until September 2016. She was granted a Bridging A visa in December 2015 which was valid until December 2017. Since December 2017 she has remained in Australia on a Bridging B visa. Department records indicate that she departed Australia on 12 December 2017 and returned on 18 December 2017. She again departed on 19 March 2018 and returned on 4 May 2018. On 27 December 2019 she departed Australia and returned on 3 February 2020.

2. Included in the application is the primary review applicant’s child. Her son was born in Sydney, Australia in October 2013 and a copy of his birth certificate has been provided. Department records indicate that he was granted a student visa as his mother’s dependant in May 2016 and was subsequently granted bridging visa in line with his mother’s visas. No father is recorded on his birth certificate.

CONSIDERATION OF CLAIMS AND EVIDENCE

Claims of family violence

1. On 21 May 2021 after the Tribunal was advised that the applicant had nominated a new migration representative, the Tribunal was asked to re-schedule a hearing to which the applicant had been invited to on 2 June 2021. The email also stated that there is evidence of domestic violence and more time was requested to prepare the case.

2. On 26 May 2021 the Tribunal was provided with 13 photographs of bruises on a person’s body. The covering email states that the photographs provide evidence of domestic violence that was perpetrated against the applicant by her former sponsor. The Tribunal was asked to reschedule the hearing to allow more time to provide for additional documents to be submitted.

3. On the same day, the Tribunal wrote to the applicant explaining that it appears from the information and evidence that she had provided to date that she is not making a claim of judicially determined family violence. She was advised that if that is not the case, she should provide the relevant court documents and that if she is making a claim of nonjudicially determined family violence she will need to submit written evidence consistent with the current instrument IMMI12/116 – Evidentiary Requirements.

4. The hearing was re-scheduled to 28 June 2021 but was re-scheduled again as a result of the 2021 Covid-19 restrictions in NSW which prevented face to face hearings from being held.

5. On 13 July 2021 the Tribunal received a letter referring to photographic evidence, some of which was photographs provided a second time. The letter states that according to the picture taken on 4 December 2016 of bruises on the applicant’s body it shows that the domestic violence had occurred for a long period of time. The letter states that the applicant did not make a report to the police because all her family members do not want her former sponsor to have any criminal record. It states that she was depressed and stressed to the point that he lost her hair (sic) and that it took two to three years for her hair to grow back.

6. The letter states that the ex-partner of the applicant’s sister had organised for the applicant to see a psychologist who can communicate in Thai or Laos language. The letter states the applicant left everything for her sister’s ex-partner to organise as she could not really communicate well in the English language but that because her sister broke up with her partner, the applicant had no idea how to contact the psychologist that she was supposed to see. According to the letter the applicant was still is in the process of seeing the psychologist who can communicate in Thai or Laos language and that a report from psychologist would be submitted to the Tribunal immediately it was received. No report was provided to the Tribunal.

7. At the hearings the Tribunal explained to the applicant that since the decision of the Department it had appeared that she was claiming that she had she been the victim of family violence within her relationship with her former sponsor. She stated that she did not provide the required evidence, because she considered it was a family matter and she did not want to share it or talk about. The Tribunal explained to her that to make a claim of family violence certain evidentiary requirements are imposed on applicants and that these had been set out in correspondence the Tribunal had sent to her. The applicant stated that she had not seen the psychologist referred to in written submissions because of the Covid-19 restrictions. The Tribunal explained to her that in any event the Tribunal must first be satisfied that she and her former sponsor had been in a genuine and continuing relationship.

8. As at the time of this decision, the evidentiary requirements to make a proper claim of family violence was not provided by the applicant.

Whether the parties are in a spouse or de facto relationship

1. At the time of application, a 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 (Cth) (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.

2. Clauses 820.211(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

3. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

Are the parties validly married?

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided the Department a copy of her NSW marriage certificate showing she and her former sponsor registered their marriage on 28 September 2015. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

Is the applicant sponsored?

1. 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 reg 1.03 of the Regulations).

2. 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.

3. Approval of 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 a lifetime and a minimum time that must lapse between each sponsorship, and in reg 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 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.

4. No evidence was presented that the applicant’s sponsor had withdrawn the sponsorship. At hearing (as detailed below) the applicant claimed that the relationship between her and her former sponsor had ended. The Tribunal is prepared to accept the applicant is no longer sponsored.

Are the other requirements for a spouse relationship met?

Nature of persons' commitment to each other

1. In her application the visa applicant claimed that she met her sponsor at Lao City Restaurant on 1 November 2012. They married in a civil ceremony at the Birth, Deaths and Marriages office in Sydney NSW on 28 September 2015. A copy of the marriage certificate was provided to the Department.

2. At hearing the applicant stated that and she former sponsor met at the Great Southern Hotel on George Street. She stated that he is Chinese but speaks Thai. When asked how they met she stated that he knew someone, and she went to meet a Thai friend at the pub. She stated that she was pregnant at that time. She stated that she was working at her sister’s restaurant called Lao City Restaurant and that there was only one toilet at the restaurant, so she often went to the Great Southern Hotel to use the toilet at the hotel.

3. The Tribunal put to her that in visa application she had claimed that they met at the Lao City Restaurant. She responded that they met at the pub and he followed to the restaurant. She stated that he told her he wanted to take care of her. When asked if she was concerned that a man she had just met followed her to her workplace, she responded that her friend knew him, and he spoke Thai and he had a good heart.

4. The Tribunal put it to her that her former sponsor was much older than her. She responded that when she met him, she was pregnant and that he was ready to look after. She stated that he asked about the father of her child and she explained that she had left him and that her former sponsor told her he wanted to look after her.

5. The applicant stated that her former sponsor came to the restaurant to help every day and to do the work. She stated that was that how their relationship stated. She stated that he was living in Strathfield and had been divorced a long time. She stated that he lived in the same property with his ex-wife. She explained he lived in a separate dwelling to his ex-wife and that there was a swimming pool in the middle.

6. The applicant stated that after she signed the registration papers for her marriage and sometime after she gave birth, she started living with her former sponsor. When asked the date she married she stated they signed the marriage papers on 28 October, but she did not know what year. The Tribunal put it to her that generally people remember a date when it has some significance. The Tribunal put to her if even if separated, it is often the case a person remembers when they married. She stated that they met each other every day because he came to the restaurant. She repeated that she could only remember 28 October.

7. The Tribunal put to the applicant that her marriage certificate indicates she registered her marriage on 28 September 2015. The Tribunal explained to her that it has concerns that having told the Tribunal she only remembers the month she registered her marriage, the date she had just provide was incorrect. When asked if she had any comment about the Tribunal’s concerns, she responded that she did not.

8. The applicant stated that she stayed with the sponsor at his home every Friday for almost two years. She stated that at first when she went to stay there, there was no abnormal behaviour but after the fourth month he started biting her. She stated that it became stressful as it got worse, so she stopped going and they separated. She was unable to remember exactly when they separated but stated that she did not want to put up with the sponsor’s behaviour again, so she stopped going.

9. The Tribunal asked the applicant why they decided to marry at that particular time. She responded that she was pregnant. The Tribunal put it to her that her response does not make sense as her son was born in 2013 and the marriage certificate indicates that the marriage was in September 2015. The applicant responded that they met at the pub and her former sponsor followed her to the restaurant and the reason she married was that he was interested in caring for her. The Tribunal put the question to her a further time and in the process explained the timeline of the birth of her son and when she and her former sponsor registered the marriage. The Tribunal also explained why her response did not answer the question being put. She responded that the former sponsor told her he will look after her. She stated that why she was attracted to him.

10. The Tribunal tried to get an understanding of when the relationship between the applicant and her former sponsor ended. She was vague about when she stopped visiting her former sponsor at his home. The Tribunal then asked her when she stopped having any connection with him. She stated that even after she stopped going to his place after about two years that he came to the restaurant where she worked. She stated that she is not very good with dates. The Tribunal asked her if she was able to connect the end of the relationship with any other events that had occurred in life. She stated that the relationship had ended well before Covid-19 started. She stated that she was unable to remember a more specific timeframe. She stated that she was bitten hard by her former sponsor and she suffered.

11. The applicant stated that even during Covid her former sponsor would come to the restaurant and try to talk but no one would talk to him. When asked how the relationship ended, the applicant stated that she stopped going to his home and that when he asked her why she was no longer visiting his house, she told him that she works a lot and that she is very busy and that she has to take her son to school. She told the Tribunal that he told her it was okay, but she said she was suffering every time she was bitten. She stated that was when the relationship ended.

12. The Tribunal put it to the applicant that based on her oral evidence it was struggling to see that the relationship was a genuine and committed one. She responded that at the beginning it wasn’t that bad.

13. Several hours before the commencement of the second hearing held on 5 January 2022, the Tribunal received a statement from the applicant by email. In it she wrote:

    My husband and I met each other at the Great Southern Hotel. I always visit the Great Southern Hotel after work or visit the place with my friends as it is close to my workplace (my sister’s restaurant). I knew my husband through my close friend. My friend told me that my husband was single, a divorced man, kind, nice, and a gentleman. As I observed, he seemed to be mature, and I felt warm and safe when I was around him. My husband was taking care of me nicely. He always asked what I wanted to drink, and he would buy those drinks for me. More importantly, my husband knew that I was pregnant, but he accepted me as who I am and took care of me. When I gave birth to my child, he sent flowers to me at the hospital where I was staying. That is when my sisters know about our relationship.

1. At the second hearing the Tribunal asked the applicant the date of birth of her sponsor. She struggled to recall it and then provided the correct date. When asked where he was born, she responded that he was born in China. She stated he’s a Chinese guy that speaks Thai. The Tribunal put it to her that sponsorship form indicates that the sponsor was born in Malaysia. The Tribunal explained to the applicant that it had concerns that she did not know what country her sponsor was born in. She stated that she was unsure how to respond.

Financial aspects of the relationship

1. The applicant stated that the Lao City Restaurant stopped operating about three years ago. She stated that her sister owned it and another restaurant called Nua Lao Thai Restaurant and then she started to work there.

2. The applicant stated that she has always been paid weekly and that she is now paid $500 per week. She stated that previously she wasn’t paid a salary because she was only helping out. She stated that her sister just gave her this and that and paid for various things. She confirmed that she has always been financially reliant on her sister.

3. When asked what the financial arrangement of the relationship, the applicant responded that she and her former sponsor had a bank account together. When asked about the purpose of the account, she responded that it was for saving for when they get older. She stated that when her sister gave her money, it was for that. She confirmed that it was not for their joint expenses. She stated that the former sponsor paid for his own property expenses.

4. The Tribunal referred to the bank statement provided by the applicant for the joint bank account covering the period from 31 December 2016 to 13 April 2017. The Tribunal explained that in reviewing the account transactions it appeared to be a transaction account and it did not appear that any savings occurred, not even at a minor level. The Tribunal explained that the same applies in relation to the other statements she provided. When asked if she wished to comment, she stated that she had no comment to make. The statement of their parties’ joint bank account for the period from 14 April to 30 June 2017 which was provided subsequently also does not demonstrate that it was used as a savings account by the parties as claimed by the applicant.

5. The applicant confirmed that she and her former sponsor had no joint assets or liabilities.

6. Asked what sort of help her former sponsor provided in the restaurant the applicant stated that he had previously owned a restaurant, so he knew what had to be done. She stated that he would tell them that the sink was getting dirty so they should clean it in case the council came to do an inspection. She stated that he taught them how to make the fried rice aromatic and he helped as a waiter.

7. In her 5 January 2022 statement the applicant wrote that she and her former sponsor had opened a joint bank account and provided the BSB and account number and stated that:

   Apart from that, my husband gives me some allowance to shop for my personal belongings, in which he gives me $200-300 per week. Regarding telephone bills, internet bills, or when we dine outside with family, it is my husband who handles these costs with his full will.

8. At the 5 January 2022 hearing the applicant told the Tribunal that the sponsor’s source of income was from his son who owned a fitness centre and from what she was aware of that was his only source of income. The Tribunal referred to the Department’s Decision Record which refers to him receiving an age pension. The applicant confirmed the sponsor received the age pension. When asked why she had not referred to the that when she told the Tribunal his only source of income was from his son, she was unclear what she was being asked. The Tribunal explained its question again. She responded that she doesn’t know how to explain.

9. The applicant told the Tribunal that the former sponsor paid when they went out and gave her $200-$300 per week. The Tribunal put to the applicant that at her first hearing she told the Tribunal that former sponsor paid for meals, but she did not refer to him providing her money. The Tribunal referred to her statement provided prior to hearing and her oral that the former sponsor provided her with money every week and asked her why she did not refer to it at the last hearing, she responded that she did.

Nature of the household

1. The applicant stated that she has lived in the Millennium tower on Sussex Street in the city since she came to Australia, but she was unable to tell the Tribunal the street number and the unit number she provided was incorrect. She stated that lived with her two sisters and her child and one of her sister’s children.

2. The applicant stated that she moved in with her former sponsor about three weeks after they registered the marriage. She stated that she stayed with him on Fridays and that on other days she had to work in the restaurant. The Tribunal confirmed with her that sometime shortly after she signed the registration of her marriage, she started spending one night a week with her former sponsor. When asked how long this arrangement continued, she responded that she went there every Friday for almost two years. She stated that at first when she went to stay there was no abnormal behaviour, but things changed after the fourth month and it became stressful. She stated that she did not remember when she stopped going to the sponsor’s home. Prior to their marriage, the applicant stated that she only visited the sponsor for birthdays and for meals with friends and that her parents would also visit her former sponsor.

3. In the statement provided to the Tribunal on 5 January the applicant wrote:

   My husband is a morning person. He wakes up very early, like before 6 AM every day. When he wakes up in the morning, the first thing he does is to take medicine. He has many congenital diseases, which are diabetes, blood pressure, and he would cough a lot when there is smoke or eat spicy food. I am always careful not to let his food have any chilli or spice. My husband has to take medicine every morning, and he has to visit a doctor to check up on his health regularly. After he finishes taking his medicines, he will make a cup of coffee for me. He always takes care of me. When we dine outside, we normally eat Chinese food, rice noodles, soup, and noodles. My husband likes to eat everything that is noodles.

   My husband likes to cook. He does not only cook for me but also for my sister and my family. My husband will come to a house in the city and cook for my family. My husband's signature dish is a Chinese-style steamed fish in soy sauce, which is delicious. Everyone in my family likes and enjoys this dish. My husband also teaches us how to run a restaurant business and how to cook Laksa, Satay sauce, how to marinate chicken satay, how to do steamed fish, and how to make noodles. He used to be a chef at a Chinese restaurant for many years, so that is why he has many recipes to share. It makes me feel really happy. It is love and connection that we have.

4. The Tribunal attempted to ascertain the nature of the household during the day the applicant spent with the sponsor when she stayed with him once a week. When asked about the sharing of any household tasks and what they did together, she stated that she went there after they finished work. She stated she would have a shower and they would talk. She referred to the fact that she would wake up later than the sponsor and his medication regime after which he would make her coffee. She stated that he loved doing her laundry and ironing. 

5. When asked the address of the residence of the sponsor the visa applicant was unable to provide the address. The Tribunal referred to the fact that she had claimed to stay there weekly for two years and was surprised that she did not know the address. She repeated previous evidence about a compound and that it was in Strathfield. She stated that she has letters with the address. After the second hearing she provided a copy of a statement the parties joint bank account for the period 14 April 2017 and 30 June 201 7showing the address in Strathfield. In the covering email the applicant’s migration representative stated that the document is sent to the address in Strathfield. The representative wrote that the applicant may not be a person who remembers those detail however the relationship was genuine during that time.

Social aspects of the relationship

1. The applicant provided two Statutory Declarations – Form 888s to the Department in support of the application to the Department. One was dated 7 November 2015 and was provided by a friend of the sponsor who wrote that he knew the parties for two years. In relation to the genuineness of the relationship, the sponsor’s friend referred to the parties being very close and that the visa applicant seemed to be very caring of the sponsor.

2. The applicant’s sister declared on 16 November 2015 that the parties and her family go out every Saturday and that their parents have met and like the sponsor. She referred to the parties loving each other and stated they have a very good future together and that they look after each other.

3. In the statement provided to the Tribunal on 5 January 2022, the applicant stated that:

   Apart from that, during holidays, he would bring me, my family, and my son to a fish market. A fish market is one of my family's favourite places as we all like to eat seafood, including my husband. After we finish eating, we will take a walk and rest at Darling Harbour with my son. My husband tells my son to call him Daddy, which makes me believe and sure about him as he does not care that I already have a child. He loves me, and he loves my family. He also truly understands Asian culture.

   My husband is very close and takes care of the staff at a restaurant and customers very well. So, when there is a new year celebration, employee’s birthday party, or customers’ birthday party, my husband will always attend the events. He is known by many people. Our restaurant is a family business. When there is a social event, my husband would always join. For example, there was a flood help event on 28 Jan 2017, which was organized by the Thai association club in Sydney to help Thais who were affected by the flood. The event took place at the Australia Centre College. The purpose of the event was to collect the donation money to help those who were affected by the flood. My family and my husband attended the event and donated. It was a Thai social event where my husband was known by many people. There were important people in that event and we were filled with happiness as we got to help those who were in crisis.

   My family and I love my husband very much (before the family violence happened). We discussed that we would move to Thailand when we are retired. I have a house and property in Thailand. I would like to live the last part of my life economically. I would like to plant vegetables, raise chickens, raise ducks, and collect their eggs to sell. We will live a simple life in our golden year. My husband has been to Thailand, and he likes Thailand. He says that he would also like to live in Thailand with me. We will save money that is enough for us to live smoothly as I already have my own house in Thailand. We can basically just go and live in my house. My husband also agrees with this plan.

   My husband has a house on Gold Coast. My husband says that he will give this house to Eric; my son when it is the right time. My husband also has enough savings to live the rest of his life with me in Thailand.

   We totally hit it off. Know what each other likes or dislikes. Our lifestyle goes along well with each other. We both love seafood. We both love travelling in the same way, same destination. We planned to spend the rest of our lives together and retire in Thailand. Looking after each other at our old age. Our relationship was a genuine one.

4. At the second hearing the Tribunal referred to the reference in the applicant’s statement that she provided that morning that both she and her sponsor loved travelling in the same way, same destination and asked whether they had travelled together. She responded that they liked to go to the fish market and that they went to the beach together. The Tribunal explained to her that generally speaking going on an outing in one’s city is not considered travel. She stated they went to Melbourne together on one occasion and said that although she was unsure as to whether she had evidence of their flights she told the Tribunal she would be able to provide photographs. She stated that the sponsor travelled to Singapore alone in 2016 to see his relatives.

5. Following the second hearing the applicant provided evidence of her trip to Melbourne with her former sponsor including photographs that were annotated as Melbourne trip; 1 February 2018 to 3 February 2018 and showed the parties at several locations in Melbourne. Their airline tickets were also provided as evidence.

6. In addition, photographs from a 4 January 2016 staff party were provided as well as further copies of previously provided photographs from the 4 January 2017 staff party as well as miscellaneous annotated photographs of the couple with family and friends. In addition, photographs of the couple receiving a Buddhist monk blessing at a restaurant as well as of the applicant’s birthday celebrations at home in Strathfield. The representative’s submission noted that the birthday cake was home baked by the sponsor and photographs with sponsor’s relatives at Lao City restaurant.

Evidence provided by witnesses

Evidence provided at the first hearing

1. At the December hearing the applicant’s sister stated she wanted the visa applicant to come where its warm and where there’s good weather and for her to undertake further studies to improve her life. The witness stated that she is able to provide for the applicant and cover her financial needs.

2. The witness stated that after the applicant received flowers at the hospital after the birth of her son and she asked who they were from and the applicant told her that she met the sponsor at a hotel. She stated the applicant went there for relaxation when she was working at the Lao City Thai restaurant. The witness stated the applicant was pregnant when she met the former sponsor. The witness stated that after she heard the story, she suggested to the applicant invite him over so they could introduce him.

3. The witness stated that she worked at Lao City Thai restaurant full-time most days.

4. The applicant’s sister could not remember when the applicant and her former sponsor married. She stated that prior to that their parents already decided the sponsor could look after the applicant.

5. The witness stated that the applicant started staying with her former sponsor after they married. She stated that before they married, she stayed occasionally but then more often they married. She stated that every single Friday she stayed with him until the point she was hurt, and she did not want to go there anymore. The witness stated that she saw bruises on the applicant’s body, but the applicant had never told them anything. She was unable to recall what year this occurred.

6. The witness stated that although the applicant’s former sponsor came to her apartment for meals, he generally did not stay there but if it was late, he would occasionally stay on the lounge.

7. The witness stated that she started paying the applicant a salary (including related tax and superannuation) about nine years ago when the applicant started working with her.

8. The witness stated that the former sponsor still comes to her restaurant and asks if they need support from him, but they don’t. She stated that what he did to the family cannot be forgiven.

9. The witness stated that the relationship between the applicant and her former sponsor ended around three years ago; around the second half of 2019 but she was not sure.

10. The witness stated that the applicant’s former sponsor would pay for meals when they went out to eat. She stated if he gave her anything extra, she did not know about it.

11. A colleague of the applicant’s also provided at evidence at the first hearing. She stated that they have worked together for a long time.

12. The witness stated that she does not know when the applicant met her former sponsor and she had not started working at the restaurant when the parties registered their marriage, so she did not attend the wedding. She stated that from what she saw they were happy together. She stated that she never went out with the parties socially. She stated that she had no knowledge of the financial arrangements between them. In relation to the emotional support they provided each other, the witness stated that the applicant and her former sponsor gave each other a big bunch of flowers on Valentines’ day. The witness stated that when she started working both the applicant and her former sponsor were already working at the restaurant. She stated that she saw that he was part of the family. She stated that he is still comes to the restaurant and provides assistance.

13. After the second hearing the witness provided a further statement, stating that the parties are both long-term acquaintances and that she confirms their relationship as husband and wife. She stated that she has known the visa applicant and her son, since 2013. She stated that when the visa applicant knew her former sponsor, she acknowledged the relationship between them and was happy for her. She believes that they are a lovely couple and love each other and that the former sponsor always came to the visa applicant’s sister’s restaurant. She wrote that she confirmed that parties loved each other and they were in a relationship.

Evidence provided at the second hearing

1. As referenced previously, the second hearing was held by video through the Microsoft Teams application. The applicant’s sister was asked to leave the room from which the applicant was providing evidence. The Tribunal asked her if it would be possible for her to remove herself in such a way that she would not be able to hear the evidence being provided by the applicant. She confirmed this and the applicant turned the device around to show the Tribunal that her sister had gone into another room and closed the door.

2. When she was called upon to provide evidence, the applicant’s sister told the Tribunal she wants to tell the visa applicant’s story. She stated that the relationship between the visa applicant and her sponsor might be different to other relationships. She stated that the visa applicant has been through a lot of stuff. She stated that when the sponsor came into her life it was something she didn’t have. She stated that the sponsor did not mind that she was carrying a baby without a father and he did not mind she had a son. She stated that the love between them was 100% true love. She stated that everyone in the community knew about it. She stated that the sponsor showed that he loved the applicant sincerely.

3. The witness asked the Tribunal to listen to the applicant who cannot speak well and told the Tribunal that it does not mean that it was not a genuine relationship just because the visa applicant could not remember the sponsor’s date of birth. The Tribunal asked her how she knew the applicant struggled to remember his date of birth. She responded that you would normally ask about a date of birth. The Tribunal expressed its concern that she was listening to the applicant providing evidence. The witness repeated that the Tribunal would always ask the date of birth and date of marriage. She repeated that it does not mean it’s not love. The Tribunal explained that its role is not to assess their love. Its role is to assess the genuineness of a relationship as defined in the Migration Act.

Concerns put to the applicant

1. The Tribunal explained to the applicant that it had concerns that the relationship was contrived for the purpose of obtaining a permanent visa. The Tribunal explained that it held these concerns for a number of reasons outlining that:

   a.the evidence provided on all aspects of the relationship was very scant.

   b.the living arrangements between her and the sponsor did not make a lot of sense given the sponsor only lived in Strathfield

   c.it had considered the references to inconsistencies provided by the visa applicant and the sponsor as outlined in the Department’s Decision Record which she had provided to the Tribunal.

   d.she did not know the sponsor’s country of birth.

1. The applicant responded that she only did not know his place of birth. The Tribunal put it to her that she claimed that they met in 2012, quickly developed a relationship and married in 2015 and remained together for about two years. The Tribunal put it to her that it is surprising that during that time his country of birth was not discussed. She responded that it was a mature love, not a teenage love. She stated they did talk about general things but not where he was born.

2. When asked if she wished to respond further to the Tribunal’s concerns, the applicant referred to the love between her and her former sponsor. She added that they were not like other couples.

Post hearing evidence regarding to the Tribunal’s concerns

1. Post hearing evidence provided after the second hearing is referred under the most relevant heading. In relation to the Tribunal’s concerns regarding the nature of the household, in an email dated 10 January 2022, the applicant submitted:

   In regard to my living arrangement with my estranged husband; [name]. Our living arrangement between [name] and I was unique one as I still have my young son. As I needed to work at the restaurant as I was and am a chef, while my younger sister looked after my young son. Hence, by living at my current address in Sussex St, Sydney CBD, it was and still is convenient for me to get back home as I worked until 10pm/11pm for the night shift. Living in Strathfield won’t be convenient for both me and my young son at that time.

   Our living arrangement may be different from other couples, but it was the genuine one.

Findings

1. At the conclusion of the first hearing the applicant was afforded an opportunity to provide any further written evidence about the genuineness of the relationship by 24 December 2021 and after the second hearing she was also provided a further opportunity to submit further written evidence.

2. The Tribunal accepts that the parties are known to each other and that they spent time together. The Tribunal has concerns that at the primary stage the information and evidence provided in support of the relationship was very thin even though the Department wrote to the applicant requesting additional evidence. The Tribunal notes that some additional evidence was subsequently provided but nevertheless little evidence was made available by the applicant.

3. The Tribunal acknowledges that in cases where a relationship ends and there are claims of family violence, it can be difficult for an applicant to obtain much supportive and corroborative evidence. A hearing with an applicant and their witnesses can often overcome such shortcomings. However, in this case the Tribunal finds that despite the oral evidence and the opportunities for the applicant to provide additional evidence, this was not the case.

Nature of commitment - findings

1. In considering the evidence regarding the nature of the commitment of the parties to each other, the Tribunal notes the scant evidence provided in respect of the sponsor. It only included evidence in relation to his divorce, his citizenship and a copy of bank statements of his personal account with the Westpac bank. He did not provide a relationship statement and although the Tribunal appreciates there is no requirement for a sponsor to do so, in this case, such a statement may have provided further insights into the relationship. In considering this issue, the Tribunal has regard to the fact that the applicant was represented throughout the visa application process. In fact, she changed her migration representative at one stage. Given this, it would not be unreasonable to expect that in a genuine relationship more substantive evidence from a sponsor regarding the relationship would be made available in support of the application.

2. The Tribunal notes that the applicant’s explanation of how she and her former sponsor were inconsistent between her oral evidence and what was written in her application. The Tribunal was not satisfied with the applicant’s explanation in regard to the inconsistency that the parties met in a hotel and he followed her to her workplace. This application appeared contrived when the inconsistency was put.

3. The Tribunal is also concerned that the applicant provided information in her application that she met her sponsor at Lao City Restaurant on 1 November 2012. However, her Departmental movement records show that she first arrived in Australia on 21 November 2012 after having been granted a Tourist (TR-676) visa on 5 November 2012. This raises credibility issues in relation to the visa applicant. 

4. The Tribunal was told by the applicant and her witness that this was a key feature of the relationship and the applicant claimed it was one of the reasons she was attracted to the sponsor. While the Tribunal accepts that both the former sponsor and her son appear in photographs, no evidence was submitted to support the claims regarding the basis of the relationship between the parties nor was any evidence provided that the former sponsor has said that he would give his Gold Coast house to her son when it is the right time.

5. The Tribunal was overall concerned with the applicant’s vagueness about various aspects of the claimed relationship. She did not know the year they married and the month she referred to was incorrect. She was vague about when she commenced spending Friday evenings with him and vague about how long she did that for. Her outline of how and when they separated was not convincing, particularly in the light of her claims of family violence. In addition, she and her witnesses also gave evidence that the former sponsor is still in contact with the applicant as he visits the restaurant. According to the applicant’s friend who gave oral evidence and a subsequent written statement the former sponsor still provides assistance at the restaurant – although the Tribunal notes that this conflicts with evidence provided by the applicant’s sister that the family does not talk to the former sponsor.

6. The Tribunal was concerned that the visa applicant struggled to recall the applicant’s date of birth although it acknowledges they have been separated for some years. Of greater concern is that the applicant did not know which country her former sponsor was born. The Tribunal considers it not unreasonable for a person not to know what country one’s husband was born even if the claimed relationship only lasted a short period. This raised further doubts about the genuineness of the relationship.

7. The Tribunal acknowledges that some of these concerns may be minor issues. Furthermore, the Tribunal acknowledges that the visa applicant and her sister may not have put any store on dates which might reasonably be expected to be significant in a relationship like when you married the person you claimed to love and when an abusive relationship ended. However, in the overall context of the evidence made available, the age difference between the parties and various other concerns outlined in this decision, the Tribunal found that taken together the concern amounted to serious doubts about the nature of the commitment of the applicant and her former sponsor.

8. For these reasons the Tribunal is not satisfied as the nature of the commitment of the applicant and her former sponsor.

Financial aspects of the relationship – findings

1. In relation to the financial aspects of the relationship, the Tribunal is prepared to accept that the sponsor paid for meals and other costs when they went out. The Tribunal does not accept that the sponsor gave her $200-$300 per week on the basis that there was no reference to this previously and that it was only raised after the Tribunal outlined its concerns regarding the genuineness of the relationship and that this consideration would have to be assessed prior to considering the applicant’s claims of family violence. Furthermore, no corroborative evidence was provided regarding this claim. In addition, the Tribunal was told that the applicant had been reliant on her sister financially since she came to Australia.

2. The Tribunal has concerns that the applicant’s claims regarding the purpose and use of the joint bank account were not borne out by the documentary evidence of the account.

3. The Tribunal does not necessarily always put weight on the fact that the parties had no joint ownership of assets or joint liabilities and there appeared to be no of pooling of financial resource nor any legal obligations owed to the other party nor any sharing of day-to-day household expenses. However, in the light of the fact that no corroborative evidence was presented that established the parties had any financial relationship. with each other and because the applicant’s oral evidence was not substantiated by the bank statements provided, the Tribunal is not satisfied as to the financial aspects of the parties’ relationship.

Nature of the household – findings

1. In considering the nature of the household of the applicant and her former sponsor, the applicant did not establish that they had a household. The Tribunal notes that the applicant claimed that she only spent one day a week with the sponsor because she still has a young son and that because of her need to work at the restaurant her younger sister looked after her young son. No explanation was provided as to why the sponsor who she claimed was very accepting of her having a child was unable to care for her son – even if that care was only part of the time.

2. If the Tribunal were to accept that the applicant only stayed at the sponsor’s home once a week due to the complexity of her work hours and impact on her and her child, the Tribunal is concerned that the information she provided in her application was misleading. In the application she declared that she had moved to Strathfield in October 2016. No reference was made in her application to her staying at her sponsor’s home only one day a week. Furthermore, the Tribunal is concerned that that her oral evidence however was inconsistent. At hearing the date at she claimed she commenced ‘living’ with the sponsor was shortly after the parties registered their marriage in September 2015. This was inconsistent with the date provided in the application of October 2016. This is a further concern regarding the applicant’s credibility.

3. The Tribunal also considered the manner in which the parties spent their time together during her weekly visit to the sponsor and whether this established they had a shared household. Her evidence referred to the sponsor’s waking time and medication regime and that he made her coffee and took care of her laundry. Insofar as the Tribunal is concerned this evidence did not persuade the Tribunal the parties in fact had a joint household.

4. On the evidence before it, the Tribunal is not satisfied as to the nature of the household between the applicant and her former sponsor.

Social aspects of the relationship - findings

1. The applicant provided numerous photographs of the parties together, with her son, with family numbers and some with a large group of people. The fact that they took some photographs together does not necessarily mean that the applicant and her former sponsor were committed to the relationship. As already acknowledged the Tribunal accepts that the parties are well known to each other. The Tribunal also accepts the parties attended various social events together and that they went to Melbourne together.

2. The Tribunal has considered the statements of support provided to the Department. Although they attested to the genuineness of the relationship the declarations provided little insight into the relationship. The evidence provided by the applicant’s friend at hearing again made attestations about the nature of the relationship between the parties, and given, on her own evidence the witness had never been out socially with the parties and she had only seen the parties together in a very limited context, the Tribunal did not put significant weight on her oral evidence although is prepared to accept that the applicant’s friend believes that the parties were happy together and that they gave each other flowers on Valentines’ day and that it appeared the former sponsor was part of the family. However, this does not mean that the relationship was genuine.

3. The Tribunal accepts the applicant’s sister declarations made on 16 November 2015 that the parties and her family go out every Saturday and that their parents have met and like the sponsor, and that in her opinion the parties were loving to each other and that they looked after each other. The Tribunal also accepts her oral evidence provided at the two hearings.

4. Although the evidence in support of the social aspects is not very strong, the Tribunal is prepared to accept the parties represented themselves to other people as being married to each other and that some friends and family members considered the relationship to be genuine. On that basis the Tribunal is satisfied as to the social aspects of the parties’ relationship.

Overall findings

1. Individually, some of the factors which were of concern to the Tribunal may not appear significant. Despite some supportive evidence regarding the social aspects of the relationship, on balance, the Tribunal finds that the combination of the factors of concern, the lack of persuasive evidence overall and the inconsistencies that became evident has lead the Tribunal to the conclusion that the relationship between the applicant and her former sponsor was not genuine and continuing, that they did not have a mutual commitment to a shared life together as husband and wife, and the Tribunal is not satisfied that the applicant and sponsor were in a spousal relationship at the time of application.

2. The Tribunal is therefore not satisfied that the applicant was the ‘spouse’ of the sponsor at the time of application within the meaning of r1.15A and accordingly does not meet the requirements of cl.820.211(2)(a) and (c).

3. The Tribunal had regard to the applicant’s claims that he suffered family violence committed by the sponsor. The Tribunal notes that the applicant did not satisfy the evidentiary requirements at the time of this decision. However, as the Tribunal is not satisfied that the applicant was the spouse of the sponsor at the time of application, there is no need to consider whether the relationship has suffered family violence committed by the sponsoring spouse, within the meaning of Division 1.5 of the Regulations. 

4. On the evidence before the Tribunal the requirements of cl.820.211 and cl.820.221 are not met.

5. The secondary applicant was also considered against clause 820.211, and it was found that he did not meet this criterion.

6. For the reasons above, the applicants do not satisfy the criteria for the grant of the visa.

7. On the basis of the above the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision

DECISION

1. The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

Linda Holub
Member

ATTACHMENT - Extract from Migration Regulations 1994

1.15A     Spouse

1. For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

2. If the Minister is considering an application for:

   (a)a Partner (Migrant) (Class BC) visa; or

   (b)a Partner (Provisional) (Class UF) visa; or

   (c)a Partner (Residence) (Class BS) visa; or

   (d)a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

1. 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.

2. 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).