Wanna (Migration)

[2019] AATA 5300

Wanna (Migration) [2019] AATA 5300 (25 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Dowmaneevon Wanna

CASE NUMBER:  1708095

HOME AFFAIRS REFERENCE(S):           BCC2015/3318428

MEMBER:Peter Vlahos

DATE:25 September 2019

PLACE OF DECISION:  Melbourne

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.820.211of Schedule 2 to the Regulations

·cl.820.221of Schedule 2 to the Regulations

Statement made on 25 September 2019 at 6:56am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – pooling of financial resources – household arrangements – social recognition of marriage – nature of commitment to each other – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

CASES
He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 applied for the visa on 10 November 2015 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.221(2) (that the applicant is the spouse or de facto partner of the sponsor as defined in s.5F or s.5B of the Act) and therefore did not meet cl.820.221.

4. The applicant appeared before the Tribunal on 17 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Brian Phommachanh (husband) and Mrs. Philavone Phommachanh. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. The applicant was represented (by telephone-link) in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether is whether at the time of application and decision the parties were in a genuine spousal relationship.

   Whether the parties are in a spouse or de facto relationship

8. Clauses 820.211(2) and 820.221require 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.

9. ‘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 r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal is satisfied that the parties married in Melbourne on 28 January 2016, evidenced by a marriage certificate[1] which was registered on 18 April 2017. 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).

    [1] AAT File, see Folio no. [50] 

    Are the other requirements for a spouse relationship met?

11. The Tribunal has had the benefit of considering material and evidence that was not provided to the delegate from the applicant (who is a national of Thailand). This included statutory declarations from the applicant and her sponsor and oral evidence from third parties who have known the couple, bank confirmations and statements of transaction, utilities bills and photographs of the parties at various social gatherings.

    Financial aspects of the relationship

12. In assessing the couple’s financial aspects of their relationship, the delegate considered the following issues: the joint ownership of assets, any joint liabilities, the extent to which the couple had pooled their financial resources, any legal obligations the couple had to each other and the general sharing of day-to-day household expenses. The delegate in his decision record[2] determined that both the applicant and her sponsor (husband) had not pooled their financial resources in any way, did not have any significant assets or liabilities, had not made any significant joint purchases, nor did they share any day-to-day financial responsibilities.

    [2] Ibid, see Folio no. [11]

13. However, the Tribunal finds there is evidence of financial mingling between the couple.

14. The parties have submitted bank confirmations and statements of transaction, spoken of the applicant being a being a beneficiary of the sponsor’s superannuation fund (and provided documentary evidence to the Tribunal)[3]. The parties provided also bank statements in the their joint names for the period 22 April 2016 to 22 February 2017 (Commonwealth Bank) and for the period 1 January 2019 to and including 30 June 2019 (also with the Commonwealth Bank). The Tribunal noted that there were a number of transfers of money that had been recorded and asked the applicant to explain these transactions.

    [3] Ibid, see Folio no. [61]

15. In response, the applicant told the Tribunal that with her husband’s consent and knowledge an amount of AUD$4000.00 was transferred to Thailand as a loan for the applicant’s brother (the sponsor’s now ‘brother-in-law’) and a further AUD$3000.00 was transferred to Thailand to assist the applicant’s father (the ‘sponsor’s now ‘father-in-law’) to purchase a motor vehicle. Indeed, the applicant went on to tell the Tribunal that her husband/sponsor ‘does everything’ as far as it concerns the needs of the ‘household’ and for the ‘applicant’.

16. The applicant told the Tribunal (and this was confirmed later in separate evidence by her sponsor) and sponsor (as a couple) had purchased a motor vehicle[4] which they jointly use to commute. The applicant also told the Tribunal, that if necessary she would provide a portion of her weekly wages to the household’s needs and went on to say that similar provision of funds was provided by her sponsor/husband to his mother as an assistance towards the sponsor’s mother’s mortgage repayment commitments.     

    [4] AAT File, see Folio [80]

17. The applicant and her sponsor/husband told the Tribunal that they had no other joint-assets.

18. Though both the applicant and her sponsor may have in the beginning of their life together treated at times their income as separate concerns, their evidence to the Tribunal of their actions as a married couple in recent times provided examples of the two mingling their finances at a greater level. The parties gave consistent evidence on this.

19. The applicant knew of the income of the sponsor and what work he did. The sponsor in return knew the work of the applicant and her earnings. He also understood and had provided his consent for the applicant top provide her family members with an amount of money for their personal needs. Though utility bills are in the name of the sponsor’s mother both the applicant and her sponsor provided consistent evidence which stated that they both provided a sum of money in contribution to the payment of such bills. Indeed, both told the Tribunal that if one did not for certain reasons, the other of the two would meet the commitment. The sponsor also had included the applicant as a beneficiary under his superannuation, as was evidenced in writing.

20. Whilst the parties might not have convinced the Department’s delegate about the brevity of activities concerning the ‘joint bank account’, their evidence before the Tribunal as to how they manage their finances and met their financial responsibilities, cause the Tribunal to conclude that there is evidence of a joint financial relationship and that there is a pooling of financial resources.

21. The Tribunal gives weight to the financial aspect of the relationship.

    Nature of the Household

22. The living arrangements of the persons are a relevant matter to consider in determining the nature of the household. The Tribunal accepts that the parties have lived together, or not permanently separate and apart, throughout their marriage as detailed their evidence before the Tribunal.

23. The Tribunal gives regard to the evidence provided by the sponsor’s mother, Ms Philavone Phommachanh (Applicant’s mother-in-law) in her evidence before the Tribunal stating that the applicant and the sponsor both reside at her residence (which is situated at – [Address 1] and that the applicant assists with the day-to-day household work when she is not working. The witness also told the Tribunal that her son (the sponsor) contributes to the household costs which include providing money towards her monthly contributions to the bank for the outstanding mortgage. The sponsor confirmed this in his separate evidence to the Tribunal, stating that on previous occasions he contributed AUD41000 to his mother for household expenses (which included the mortgage contribution) and now provides AUD$500 on a weekly basis.

24. Both the applicant and her sponsor gave evidence to say that each of them carry out various activities around the house – the applicant prepares when she can the family’s meals, while her sponsor takes care of the garden that attaches to the residence. Both assist the mother and mother-in-law with the care of her disabled husband (father and father-in-law). The Tribunal gives regard to this evidence of the parties and concludes that the parties lived together at an address in Melbourne. The parties have given a consistent account of their daily life and routine in that property.

25. The Tribunal accepts that the applicant and her sponsor live in the mother’s and mother-in-law’s home since they were married. They have provided photographs of themselves there celebrating with other (the applicant’s birthday (30^th)) and enjoying the company of friends and family.

26. It is not submitted that the parties look after, or have looked after, children.

27. The Tribunal accepts the parties have lived at the home of the sponsor’s mother, on or around the time of when they were married and that they still live together at the time of this decision. The Tribunal bases its finds on the consistent evidence of the parties in their statements and in their evidence before the Tribunal. The Tribunal was also assisted in arriving at its findings by declarations of third parties[5], and photographs with descriptions.[6]

    Social Aspects

    [5] AAT File, see Folio [25]

    [6] AAT File, see Folio [57]

28. There is evidence of the parties representing themselves to others as being married to one another. Again the Tribunal refers to the statements on its file attesting to their genuineness as a couple. The Tribunal notes the declaration of Mr Somboun Sayboualay dated 27 April 2017 which attests to the genuineness of the parties’ relationship, and states that he had visited the parties on a number of occasions at home.

29. There are photographs on the file of the parties in various social situations with others and the Tribunal noted that there have been visits to Thailand, in the company of others. Home scenes with others are also depicted.

30. The applicant and sponsor have provided credible evidence that family and friends are supportive of their marriage. The Tribunal gives weight to the evidence of family and others who supported and approved of the relationship and the couple’s marriage. Joint social activities are undertaken regularly. There is evidence before the Tribunal of social arrangements having been made over a few years with friends and family by the parties.

31. The Tribunal finds that there is social recognition of the marriage and gives weight to that aspect of the application.

    Nature of the persons’ commitment to each other

32. The couple have known each other since 2008. They met through the applicant’s ‘aunt’ who resides in Sydney who knew the sponsor’s mother. An introduction was arranged by the aunt and mother-in-law and the two later began to communicate while the applicant was still in Thailand. Further the sponsor visited Thailand and met the applicant in 2010. Thereafter, the Tribunal was told, the applicant and her sponsor were in regular communication and thereafter continued the friendship while the applicant was studying in Sydney[7]. They were married on 8 November 2015. The parties have known each other for a period of eleven years. The Tribunal accepts the applicant’s account of how the relationship commenced and that the parties have been living together as husband and wife since 2015.

    [7] The applicant’s migration history is as follows: - on 14.02.2015 she arrived in Australia as the holder of a Student (subclass 573) visa that ceased on 26 December 2018. On 10.11.2015 lodged a Partner (subclass 820/801) visa application.

33. The Tribunal finds that the parties reside together and have done so continuously from 2015 to the present.

34. Having the oral and written evidence of the parties as was provided to the Tribunal, the Tribunal concludes there is close communication between the parties. The Tribunal gives regard to the fact that the applicant is not completely fluent in English. Daily life is discussed in detail and a mutual interest and care is observed. The Tribunal gives regard to this evidence.

35. There is an awareness of each other’s needs and aspirations and there is displayed a concern for their mutual future together which is in keeping with a couple in a genuine and committed spousal relationship.

36. The couple support one another in their daily life. The family support them and their friends.

37. The Tribunal finds there is evidence of a long-term commitment to a spousal relationship.

38. Having had regard to the financial aspects (as were explained by the parties to the Tribunal), the nature of the household, the social aspects and the nature of the persons’ commitment to each other, the Tribunal considers these findings together demonstrate that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that they show that relationship is genuine and continuing. The Tribunal finds that the parties live together. They therefore meet the requirements of s. 5F for a spousal relationship.

39. Given these findings the Tribunal is satisfied that at the time of the visa application was made and the time of this decision the parties were in a spousal relationship.

40. Therefore the applicant meets cl. 820.211 and cl. 820.221.

41. 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.

    DECISION

42. 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 of Schedule 2 to the Regulations

    ·cl.820.221of Schedule 2 to the Regulations

    Peter Vlahos
    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).

    (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).