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Panthong (Migration) [2024] AATA  3153  (27 August 2024)

Last Updated: 5 September 2024

Panthong (Migration)  [2024] AATA 3153  (27 August 2024)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Ms Dawan Panthong

REPRESENTATIVE: Mr Mahalingam Sutharshan (MARN: 0961664)

CASE NUMBER: 1915319

HOME AFFAIRS REFERENCE(S): BCC2014/2422277

MEMBER: T. Quinn

DATE: 27 August 2024

PLACE OF DECISION: Melbourne

DECISION: The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:

• clause 801.221(2) of Schedule 2 to the Regulations.

Statement made on 27 August 2024 at 9:41am

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – genuine and continuing partner relationship – pooling of financial resources – evidence of communication and joint travel – mutual support with health issues – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65, 338, 347
Migration Regulations 1994, Schedule 2, cl 801.221; rr 1.09, 1.15

CASES

He v MIBP [2017] FCAFC 206
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; [2000] 168 ALR 407
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. On 24 September 2014, the applicant (‘the applicant’) applied for a Partner visa^[1] (‘the visa’) on the basis of her relationship with her sponsor, Mr Robin Johnson (‘the sponsor’).^[2]
2. On 12 January 2016, the applicant was granted a Temporary Partner visa.^[3]
3. On 31 May 2019, a delegate of the Minister for Home Affairs (‘the delegate’) refused the applicant’s Residence Partner visa application, not being satisfied that at the time of decision the applicant was in a genuine de facto relationship with the sponsor as defined by section 5CB of the Act (‘the delegate’s decision’).^[4]
4. On 14 May 2019, the applicant applied for a review of the delegate’s decision with this Tribunal.^[5]
5. On 16 August 2024, the applicant and the sponsor appeared via video hearing before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence via telephone from the couple’s neighbour, Ms Dorothy Lee. The applicant was represented in relation to the review and their representative also attended the hearing on 16 August 2024. The applicant’s evidence at hearing was conducted with the assistance of an interpreter in the Thai and English languages.
6. The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also considered its objective to provide a mechanism of review that is fair, just, economical and quick and the delay that would occur if the hearing were not be conducted by video in exercising its discretion.
7. For the following reasons, the matter is remitted for reconsideration. I have proceeded to a decision having regard to all the information before me. In reaching my decision, I have regarded:
   1. the evidence given by the applicant, the sponsor and Ms Lee at hearing;
   2. all material filed by or on behalf of the applicant, including post hearing submissions as requested at hearing; and
   3. other relevant documents on the Tribunal and Department files.

Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.

STATUTORY AND LEGAL FRAMEWORK

8. Clause 801.221(2)(a), (b) and (d) of the Regulations require that at the time of decision:
   1. the applicant is the holder of a Subclass 820 visa – the applicant was granted a Partner (Temporary)(Class UK) visa pursuant to subclass 820 provisions on 12 January 2016;^[6]
   2. the applicant continues to be sponsored by the sponsor who is an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The applicant has filed a copy of Ms Johnson’s Australian Citizen certificate dated 1 February 1974 with the Department showing he is an English born Australian citizen, born on 26 April 1952.^[7] Based on the information before me I am satisfied that the sponsor is an Australian citizen; and
   4. at least two years have passed since the application was made.

These elements are all satisfied.

9. Clause 801.221(2)(c) requires that the applicant is the spouse or de facto partner of the sponsor. This is the issue in this case: whether the applicant and his sponsor (together referred to as ‘the applicants’) are in a de facto relationship as defined by section 5CB of the Act.
10. ‘De facto’ is defined in section 5CB of the Act and provides that a person is the de facto partner of another where the two persons are not in a married relationship but have a mutual commitment to a shared life 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.^[8] 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 visa applicant’s and the sponsor’s household and their commitment to each other as set out in clause 1.09A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.09A(3) of the Regulations are effectively questions which must be answered.^[9]
11. The matters outlined in clause 1.09A(3) of the Regulations (and any other circumstances of the relationship under clause 1.09A(2)) must be considered and, to the extent relevant, applied to the applicant’s case. Accordingly, I have carefully considered these matters in relation to the material and evidence before me. I recognise, however, that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor of clause 1.15A is relevant and applicable, independently of any conclusions reached by the delegate.
12. Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.^[10] In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims made by the applicants, and I have not done so. A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.^[11]
13. If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.^[12]
14. It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.^[13]

CONSIDERATION OF CLAIMS AND EVIDENCE

Timeline^[14]

15. The sponsor first arrived in Australia in June 1988 and has been married once before when he was in his early 20s. There were no children of that marriage.
16. The sponsor has run his own fruit and vegetable import/export business for the last 30-35 years.
17. The applicant first arrived in Australia in July 2006 on a student visa. She remained onshore on student and associated bridging visas until the time of her application for a partner visa in 2014.
18. In 2007, the sponsor purchased a three-bedroom apartment in Pyrmont (‘the apartment’) with his de facto partner Audrey as joint tenants. He has lived in the apartment since that time. Audrey was also a partner in the sponsor’s business and the sponsor listed Audrey as his emergency contact on his incoming passenger cards during his extensive travel up until November 2018.
19. The sponsor claims to have ended his relationship with Audrey in 2012.
20. The applicants met in 2013 through the dating site ‘RSVP’ and claim to have commenced living together in 2014.
21. The applicants have filed a relationship certificate dated 11 August 2014.
22. The applicant was granted a temporary partner visa on 12 January 2016.
23. In July 2016, the sponsor purchased Audrey’s share of the apartment for $1,000,000 and now owns 100% of the apartment. The evidence at hearing was that at this time Audrey also left the sponsor’s business as a partner and the sponsor is now the sole director of his business.
24. The applicant worked as a chef for a hotel for ten years until the COVID19 Pandemic when the hotel closed, and she lost her job. She has not returned to work since that time.
25. The applicants have undertaken travel together, including to the United Kingdom to visit their sisters who both live there.
26. The applicants currently reside together at the apartment.

Evidence Generally

27. Although there were minor inconsistencies in some of the applicants’ evidence at hearing, I found them generally to be credible witnesses and they appeared to give authentic answers to questions, and it did not present as rehearsed. However, taking the evidence as a whole I have reservations about whether the applicants were in a genuine relationship or living together on a permanent basis prior to 2019. Findings have already been made in this regard to a significant extent in granting the applicant her temporary partner visa in 2016 and I do not consider it appropriate to re-open this issue in the circumstances.
28. The applicants have filed detailed submissions and other evidence which I have had regard to in coming to my decision in this case.

Financial aspects of the Relationship

29. Financial aspects of the relationship including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses must be considered when assessing the financial aspects of the relationship.
30. The evidence before me at hearing from all three witnesses was that the applicants have been living together at the apartment since at least 2019. The applicant was able to answer questions about the payout figure to Audrey in relation to the apartment, the current mortgage repayments and the sponsor’s work and income and future plans. These answers were consistent with the answers later given by the sponsor and with documentary evidence.
31. The sponsor was able to answer questions about the applicant’s hotel work as a chef, her hours and income, the ten-year period in which she worked in that job and how she got to and from that job. These answers were relatively consistent with the applicant’s evidence.
32. The evidence at hearing was consistent that the sponsor is supporting the couple entirely financially and the applicant undertakes the major share of household tasks.
33. There was some inconsistent evidence about the applicant’s future employment plans but ultimately evidence was given that the couple plan to start their own hospitality business together.
34. The applicant was well versed in the hours and details of the sponsor’s work. There was some inconsistent evidence about the sponsor’s future plans with his business given his advanced age and health.
35. The applicants have filed evidence of the sponsor’s will bequeathing his estate to the applicant and the applicant’s superannuation listing the sponsor as beneficiary. In post hearing submissions the applicants have filed evidence of the sponsor’s binding death nomination for his superannuation being his estate, signed in 2020. Given his estate is bequeathed to the applicant the effect of this nomination is that the sponsor’s superannuation will also go to the applicant.
36. The applicants have filed joint utility bills and bank statements. There was some confusion about the reference ‘loan’ for incoming payments from the sponsor of $2,000 to the joint account but this has been clarified by the applicants and their accountant in post hearing submissions regarding the sponsor’s business set up.
37. The evidence indicates pooling of financial resources although I note the applicant’s contribution to this is minimal given she has not worked for the last four years.
38. In the circumstances, I place some weight in the applicants’ favour in relation to the financial aspects of the relationship.

Nature of the Household

39. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.
40. I refer to and repeat paragraphs 30-37.
41. The applicants gave consistent evidence about their arrangements with getting around being that the sponsor has two cars, one of which has been used by the applicant for the last four or five years.
42. The evidence at hearing was consistent about each party’s marital history and the fact that neither of the applicants have had children. The applicant was well versed in the sponsor’s health circumstances and his medication for his conditions. This was generally consistent with the evidence given by the sponsor and on the files.
43. The applicants gave consistent evidence about the size and use of their three bedrooms at the apartment. They gave generally consistent evidence about the applicant’s use of the treadmill although the sponsor did not appear aware that the applicant had recently stopped using the treadmill due to knee pain.
44. The evidence given at hearing was consistent in relation to the sponsor’s golfing, including the days he attends and who he attends with. The evidence at hearing was consistent that although there is a photo on file of the couple together at the sponsor’s golf, the applicant has not attended more than once or twice because she does not like the sun or the impact it has on her skin. I found this evidence persuasive.
45. The applicants have filed many documents in joint names at the same address and claim to have been living together for many years although I consider it likely the couple only began living together on a permanent basis at the apartment in 2019.
46. The applicants have filed evidence of having travelled together, including photos, along with screen shots of their communication on WhatsApp (particularly during the sponsor’s time away travelling for work) as requested in post hearing submissions.
47. In the circumstances, I place some weight in favour of the applicants in relation to the household aspects of the relationship.

Social Aspects of the Relationship

48. Whether the applicants represent themselves to other people as being married to each other, the opinion of the applicants’ friends and acquaintances about the nature of the relationship and any basis on which the applicants plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
49. I refer to and repeat paragraphs 40-46.
50. The applicants have filed photos of the applicant and the sponsor undertaking shared activities, at home together (and together with guests), out with others and traveling together.
51. The applicants have filed statutory declarations from family and friends which are consistent with the evidence given at hearing. This evidence includes that the applicant has been active in supporting the sponsor with his health issues. Ms Lee gave consistent oral evidence int his regard, including that it was clear to her that the couple were in a romantic relationship, and she sees them regularly in the apartment building or at the local shops.
52. The applicants have filed screen shots of their communication on WhatsApp as requested in post hearing submissions.
53. The applicants gave generally consistent evidence about their decision not to get married as it is not legally required.
54. The applicants have returned to the United Kingdom during which time they met each other’s sisters who both live there.
55. The applicants gave generally consistent evidence about the details of the restaurants they like to attend and their favourite meals.
56. I place some weight in the applicants’ favour in relation to the social aspects of the relationship.

Nature of the applicant and the sponsor’s commitment to each other

57. The duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the parties see the relationship as a long term one are all aspects to be considered in determining the nature of the parties’ commitment to each other.
58. I refer to and repeat paragraphs 49-55.
59. The applicants claim to have been in a relationship for over ten years and to have been living together for ten years. I consider the applicants have been living together for at least the last five years. I have some concerns about the evidence before me regarding the sponsor’s relationship with Audrey but consider that since at least 2019, the applicant and sponsor have been living in the apartment together on a permanent basis to the exclusion of all others.
60. There is a very large age difference, over twenty years, between the applicant and the sponsor. The applicant claims she was never attracted to men her own age and the sponsor appeared to consider the age difference irrelevant and said, ‘you can’t help falling in love’.
61. The evidence at hearing, the statutory declarations filed in support of their relationship, the sponsor’s will and the photos the applicants have filed suggest the degree of companionship and support one would expect in a genuine de facto relationship.
62. The evidence before me indicates that the applicant has been active in supporting and helping with the sponsor’s health issues.
63. The applicants gave consistent evidence that they see their relationship as long term and agreed early in their relationship not to have children.
64. I place some weight in the applicants’ favour in relation to their commitment to each other.

Conclusions

65. There is a very large age difference, over twenty years, between the applicant and the sponsor. I am concerned that the applicant may be motivated by securing a positive migration outcome and a secure financial future and I am concerned that the sponsor may be motivated by securing ongoing care as he ages and his health deteriorates. However, the Full Federal Court has held that people enter into marriages with a variety of purposes and motives and it is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country.^[15] I consider this principle applies equally to de facto relationships and that whilst the applicant and sponsor may have these motivations they are also in a genuine de facto relationship.
66. I have carefully considered all of the evidence before me. I consider the evidence supports a finding that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others and that their relationship is genuine and continuing and that they live together, not separately and apart, on a permanent basis. I am satisfied that the applicant is in a spouse relationship with the sponsor and the applicant therefore satisfies clause 801.221(2) of Schedule 2 of the Regulations.

DECISION

67. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 visa:
    • clause 801.221(2) of Schedule 2 to the Regulations.

T. Quinn
Member

ATTACHMENT - Extract from 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 in a de facto relationship with 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] Specifically, a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.

^[2] Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class BS contained only one subclass: Subclass 801 (Partner) and Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of these visas are set out in Parts 801 and 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] A Partner (Temporary)(Class UK) visa as set out in part 820 of Schedule 2 to the Regulations.
^[4] See clause 801.221 of the Regulations.
^[5] Pursuant to sections 338(2) and 347 of the Act.

^[6] See Department file.

^[7] See Department file.
^[8] Section 5CB(2)(a)-(d).
^[9] He v MIBP [2017] FCAFC 206.
^[10] Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.

^[11] Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].

^[12] Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; [2000] 168 ALR 407 at [67].

^[13] Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].
^[14] See Department and Tribunal files and evidence at hearing.
^[15] Re MILGEA and Dhillon [1990] FCA 144.