Canales (Migration) - [2025] ARTA 1655

CANALES (MIGRATION) [2025] ARTA 1655 (21 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Mrs Merry Dory Catacutan Canales
Miss Summer Vanz Nicole Canales
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2210112

Tribunal:Peter Emmerton
Place:Adelaide
Date: 21 July 2025
Decision:The Tribunal sets aside the decisions under review and remits the applications for Partner (Temporary) (Class UK) visas for reconsideration in accordance with the order that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations.
·cl 820.221 of Schedule 2 to the Regulations

Statement made on 21 July 2025 at 1:00pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – passage of time, personal statements, extensive documentation and photographs of socialising and travel – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 5F(2), 65
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211(2)(a), 820.221
CASE
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) applied for the visa on 17 November 2019, 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 (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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221(2)(a) because they were not satisfied the applicant was in a genuine spousal relationship as required by section 5F.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decisions under review are set aside, and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the couple are in a genuine spousal relationship as defined by 5F of the Act.
In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Canales (Migration) [2025] ARTA 1655
Case: [2025] ARTA 1655
Decision Date: 21 July 2025

CaseChat Overview and Summary

The parties to the case were the applicants and the Department of Home Affairs, with the matter being heard by the Migration Review Tribunal. The applicants sought a review of a decision to refuse their application for a Partner (Temporary) (Class UK) visa, subclass 820. The primary issue before the Tribunal was whether the applicants were in a genuine spousal relationship as defined under the Migration Act. The Tribunal was required to assess the credibility of the evidence presented by the applicants and determine whether the relationship met the statutory requirements for a spousal visa.

In its reasoning, the Tribunal found that the applicants were validly married and had provided evidence of their relationship, including personal statements, extensive documentation, and photographs. The Tribunal considered all relevant aspects of the relationship, such as financial, household, and social factors, as well as the nature of the commitment between the parties. The Tribunal concluded that the decisions under review were set aside and the matter was remitted for reconsideration by the Minister, who must now consider the remaining criteria for a subclass 820 visa.

The final orders of the Tribunal were that the decisions under review are set aside, and the matter is remitted for reconsideration in accordance with the Tribunal's decision. The Tribunal found that the applicants met the requirement of being validly married, but the remaining criteria for a subclass 820 visa must be considered by the Minister. The Tribunal also noted that it had considered all the evidence presented by the applicants and the Department, and had given appropriate weight to the circumstances and difficulties the applicants faced in presenting their case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decisions under review are set aside, and the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the couple are in a genuine spousal relationship as defined by 5F of the Act. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department. The Tribunal has read and carefully considered all the evidence submitted to the Department and the delegate. The Tribunal has read and carefully considered all the additional evidence presented to It prior to making this decision.Whether the parties are in a spouse or de facto relationship Clauses 820.211(2)(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. ‘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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.Are the parties validly married? If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married in a civil ceremony at Salisbury East, South Australia on 25 October 2019. The Tribunal has viewed the appropriately signed and sealed certificate and is satisfied it is authentic. 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).Are the other requirements for a spouse relationship met?

Decision

Reasons for decision

Given the findings above, the appropriate course is to set aside the decisions under review and remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.DECISION The Tribunal sets aside the decisions under review and remits the applications for Partner (Temporary) (Class UK) visas for reconsideration in accordance with the order that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211 of Schedule 2 to the Regulations·cl 820.221 of Schedule 2 to the RegulationsRepresentative for the Applicant: Ms Trang Doan VuATTACHMENT - Extract from Migration Regulations 19941.15A 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).

Ratio Decidendi

Legal Principle Established

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