Dela Cruz (Migration) - [2025] ARTA 1659

Dela Cruz (Migration) [2025] ARTA 1659 (5 August 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Jay Palomares Dela Cruz
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2203595

Tribunal:General Member K Malyon
Place:Sydney
Date: 5 August 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations.; and,
·cl 820.221of Schedule 2 to the Regulations.

Statement made on 05 August 2025 at 4:54 pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – history and length of relationship and valid marriage – work, study, support for health, joint travel and other activities – extensive documentation, credible oral evidence and supporting statements – sponsor’s previous sponsorship of first husband – deficient advice and service from former agent – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), rr 1.15A(3), 1.20J, 1.20KA(2), Schedule 2, Schedule 2, cls 820.211(2)(a), (c), 820.221
CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
Vuong v MHA [2019] FCCA 827
STATEMENT OF REASONS

APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant, Philippine national Mr Jay Palomares Dela Cruz, applied for the visa on 31 March 2020 on the basis of his spousal relationship with his sponsor, Australian citizen Marites Coria Dela Cruz (formerly known as Marites Coria Manese and her maiden name Marites Coria). At that time, Class UK contained only one subclass: Subclass 820 (Partner). Criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
3. The delegate refused to grant the visa on the basis that Mr Dela Cruz did not satisfy cl 820.211(2)(a) of Schedule 2 to the Regulations because, after considering the limited evidence and information provided in relation to the matters prescribed under reg 1.15A of the Regulations, the delegate was not satisfied Mr Dela Cruz was the spouse of Mrs Dela Cruz. Details of the delegate’s reasons in this regard are set out below.
4. Following refusal of Mr Dela Cruz’s Subclass 820 Partner visa application on 4 March 2022, an application for review was lodged with the Administrative Appeals Tribunal (the AAT). A range of documents were lodged in support of the review application at the time it was filed, in particular, multiple Forms 888 Supporting statement in relation to a Partner or Prospective Marriage visa application from…

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

Case: [2025] ARTA 1659
Decision Date: 5 August 2025

CaseChat Overview and Summary

In the matter of an application for review of a decision made by the Migration Review Tribunal, the applicant, Dela Cruz, sought to challenge a decision to cancel a subclass 820 visa. The dispute centred on whether the relationship between Dela Cruz and her sponsor was genuine and continuing. The case was heard by the Federal Circuit Court of Australia. The primary issue before the court was whether Dela Cruz could demonstrate that she had a genuine and continuing relationship with her sponsor, sufficient to meet the requirements of a subclass 820 visa. This involved examining the financial, household, social aspects of their relationship, and the nature of their commitment, among other factors.

The court had to consider the history and length of the relationship, the validity of the marriage, and the extent to which the couple engaged in joint activities such as work, study, and support for health, as well as joint travel. The court was presented with extensive documentation, credible oral evidence, and supporting statements from various sources. The court also had to consider the sponsor's previous sponsorship of Dela Cruz's first husband and the impact of deficient advice and service from a former agent on the application. The court found that the Tribunal had not given sufficient weight to the evidence of the relationship, including the marriage certificate, joint financial transactions, and social activities. The court concluded that the decision to cancel the visa was not supported by the evidence.

The court remitted the matter back to the Tribunal for reconsideration, with directions to properly assess the evidence and make a fresh determination in accordance with the law. The orders of the court required the Tribunal to take into account the marriage certificate, joint financial transactions, social activities, and other evidence of the relationship, and to give proper weight to the credible oral evidence and supporting statements. The decision to cancel the visa was set aside, and the matter was remitted for further consideration.

Orders