Dela Cruz (Migration)
[2025] ARTA 1659
•5 August 2025
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 remittedLEGISLATION
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), 820.221CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
Vuong v MHA [2019] FCCA 827STATEMENT 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 family and friends as well as evidence to address the requirements in reg 1.15A of the Regulations regarding the genuineness of the claimed spousal relationship. Further documentation was provided in September 2024, October 2024 and April 2025.
5. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
6. Following constitution of the matter to the Member, Mr Dela Cruz and his wife Mrs Dela Cruz (hereinafter referred to as the couple) were invited to attend a hearing on 6 June 2025. The Tribunal’s hearing invitation noted that oral evidence may also be provided from any of the couple’s family or friends. It also expressly referred to the nature of documentation that would be required to enable the Tribunal to favourably consider the review application. Extensive documentation was provided in response to that request.
Hearing – 6 June 2025
7. Mr Dela Cruz appeared before the Tribunal on 6 June 2025 to give evidence and present arguments. Oral evidence was also provided from Mrs Dela Cruz as well as David Pickering, Mrs Dela Cruz‘s step-father. Her mother Gregoira Pickering would have attended the hearing but for her poor health.
8. The Tribunal took independent evidence during the hearing from Mr Dela Cruz and Mrs Dela Cruz about their relationship history, the financial as well as social and household aspects of their relationship and the nature of their commitment to each other since their relationship started. It found both Mr Dela Cruz and Mrs Dela Cruz as well as the witness David Pickering to be credible and truthful witnesses. Evidence provided at the hearing is discussed below.
9. During the course of hearing, the Tribunal discussed shortcomings in documentation provided to date that would assist it make a decision in this matter. After the hearing, further evidence was provided to address concerns raised by the Tribunal during the hearing. Information provided is discussed below.
10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. The Tribunal acknowledges that it has significantly more information (in excess of 1,500 pages) than that which was available to the delegate at the time of their decision, and it also has the benefit of credible oral evidence at the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issue
11. The issue in the present case is whether the applicant Mr Dela Cruz is the spouse of his sponsor Mrs Dela Cruz both at the time of lodgement of the visa application and at the time of this decision. Relevant provisions of the Act and the Regulations referred to in this decision are set out in the Attachment to the decision.
Background
12. By way of background, Mr Dela Cruz is a 52-year-old Philippine national who arrived in Australia as the holder of a Subclass 600 on 10 October 2019 for a 3-month stay during which time he formally divorced his first wife Cristina Dela Cruz. Mr Dela Cruz’s first marriage resulted in the birth of 5 children, 3 of whom live in the Philippines and 2 minors who now live in Australia. He divorced his first wife as confirmed by the Divorce Order issued by the Federal Circuit Court of Australia on 26 August 2019. After going back to the Philippines for just 3 days, Mr Dela Cruz re-entered Australia on 12 January 2020 and lodged his Subclass 820 Partner visa application on 31 March 2020 after marrying Mrs Dela Cruz on 8 February 2020. Mr Dela Cruz has undertaken nursing studies in Australia and currently works as an Assistant in Nursing at Bolton Clarke Willowdale, an aged care facility in Denham Court.
13. Mrs Dela Cruz is a 48-year-old Australian citizen. She has 4 children from her first marriage to Cesar Manese whose residence in Australia she had sponsored. However, that marriage ended in divorce as confirmed by the Divorce Order made 3 September 2012 by the Federal Magistrates Court of Australia. Mrs Dela Cruz is a Registered Nurse who works at Liverpool Hospital.
14. The couple met on 2 February 2017 when Mrs Dela Cruz had returned to the Philippines to meet up with family there as her mother has a Philippine background. The couple lost contact with each other but Mr Dela Cruz was on a television show in the Philippines in April 2019 which Mrs Dela Cruz happened to see in Australia. Subsequently, she messaged him and the couple’s online communications commenced. Mrs Dela Cruz later flew to the Philippines twice that year in May and August to meet up with Mr Dela Cruz again and, as explained at the hearing, their relationship flourished thereafter. She also met his parents and his 3 children living there. Mrs Dela Cruz told the Tribunal that his mother gave her blessing to the couple’s marriage bur, sadly, died not long after.
15. Following Mrs Dela Cruz’s return to Australia on 25 August 2019, Mr Dela Cruz flew to Australia on 10 October 2019 and took the opportunity not only to spend time with Mrs Dela Cruz again but also meet her 4 children. Mr Dela Cruz went back to the Philippines for just 3 days before returning to Australia on 20 January 2020 and has remained here since then.
16. The couple were married on 8 February 2020 at Yarrow Bay Sailing Club, Philip Bay as confirmed by their NSW Marriage Certificate lodged with the Department. Over time, the couple have rented multiple properties in south-western Sydney area and currently reside at their home in Tropic Bird Crescent, Hinchinbrook (the Hinchinbrook Property).
17. During the hearing, the couple independently opined that the agent who they had used to assist them with Mr Dela Cruz’s Subclass 820 visa application had clearly been deficient in her advice. By way of example, although the delegate’s decision makes reference to the couple having provided only one Form 888, they had in fact provided her with multiple Forms 888. Further, she had also not told them about the need to provide a Form 40SP Sponsorship for a partner to migrate to Australia and had clearly also not provided the Department with other documentation that they had provided to her. The Tribunal discussed during the hearing the appropriateness of possibly referring the former representative’s conduct to the relevant regulatory authority, in this case, the Office of Migration Agents Regulation.
Relevant law
18. Clause 820.211
of Schedule 2 to the Regulations requires that, at the time of application, the applicant meets one of several alternative sub criteria. Relevantly, cl 820.211(2) and
cl 820.221 of Schedule 2 to the Regulations respectively require that, both 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, an Australian permanent resident or an eligible New Zealand citizen. Mr Dela Cruz claims to be in the spouse of his Australian citizen sponsor Mrs Dela Cruz.
19. Having considered the biodata page of Mrs Dela Cruz’s Australian passport lodged with the Department, the Tribunal accepts that Mrs Dela Cruz is an Australian citizen. Mrs Dela Cruz also provided the Tribunal with a certified copy of her mother’s Certificate of Australian Citizenship dated 15 August 1990 which confirms that the child Marites C Coria is included in the Certificate. At that time, Mrs Dela Cruz was 12 years old.
20. The word ‘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 they must not live separately and apart on a permanent basis: s 5F(2)(a)-(d) of the Act.
21. In forming an opinion about whether the parties are in a spousal relationship at the 2 relevant times, consideration must be given to all of the circumstances of the relationship. For partners in a spousal relationship, this includes consideration of evidence of the financial and social aspects of the relationship, the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3) of the Regulations. Each of the specific matters contained in reg 1.15A(3) of the Regulations are effectively questions which must be answered: He v MIBP [2017] FCAFC 206. The Tribunal is required to consider each of the specified matters in reg 1.15A(3) of the Regulations: Vuong v Minister for Home Affairs [2019] FCCA 827.
22. Relevant to its review of the delegate’s refusal of Mr Dela Cruz’s Subclass 820 Partner visa application, the Tribunal notes the following comments of Middleton J in Jayasinghe v MIMA [2006] FCA 1700 at para [35]:
Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.
23. Accordingly, in deciding this matter, the Tribunal has had regard to evidence of events that occurred subsequent to the date of lodgement of Mr Dela Cruz’s visa application 5½ years ago.
Are the parties validly married?
24. If the couple are validly married, they may meet the requirements of a spousal relationship but not a de facto relationship.
25. The Department’s file contains a copy of the Marriage Certificate of Mrs Dela Cruz and Mr Dela Cruz issued under the Births Deaths and Marriages Registration Act 1995 (NSW) confirming their marriage on 8 February 2020 at Phillip Bay.
26. Each of the couple declare in their Marriage Certificate that they were previously divorced. Lodged with the Tribunal prior to the hearing was a copy of Mrs Dela Cruz’s Divorce Order issued by the Federal Magistrates Court of Australia on 3 September 2012. After the hearing, Mr Dela Cruz provided a copy of his Divorce Certificate issued by the Federal Circuit Court of Australia on 26 August 2019 confirming the divorce from his first wife Cristina Dela Cruz. Accordingly, there is nothing to suggest that the marriage of Mr Dela Cruz and Mrs Dela Cruz is not valid.
27. The Tribunal notes in passing that the Department’s Movement Records confirm Cristina Dela Cruz had visited Australia on multiple Subclass 600 Visitor visa applications since mid-2017 and she was subsequently granted an off-shore Subclass 309 Partner visa application on 21 September 2021 and she is now a permanent resident as the holder of a Subclass 100 Partner visa.
28. Based on the evidence provided, the Tribunal accepts that Mr Dela Cruz and Mrs Dela Cruz were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a) of the Act.
Are the other requirements for a spousal relationship met?
29. In forming an opinion on the matters required in s 5F(2)(b - (d) of the Act, regard must be had to all of the circumstances of the claimed relationship. This includes the factors identified in reg 1.15A(3) of the Regulations and any other circumstances relevant to the relationship with under reg 1.15A(2) of the Regulations. In summary, the factors in reg 1.15A(3) of the Regulations are: the financial aspects of the relationship; the nature of the household; social aspects of the relationship; and, the nature of the persons’ commitment to each other. The Tribunal has considered whether these requirements are met both at the time of application and at the time of this decision.
30. The Tribunal has had regard to the extensive written material submitted both before and after the hearing. It also has the benefit of the couple’s oral evidence at the hearing as well as that of Mrs Dela Cruz’s step-father David Pickering. The Tribunal found each of the couple and David Pickering to be credible and truthful witnesses.
31. Based on evidence provided, the Tribunal accepts that the couple first met in person in early 2017 after connecting on an online dating website when Mrs Dela Cruz was holidaying in the Philippines. Thereafter, they reconnected in early 2019 after Mrs Dela Cruz had seen Mr Dela Cruz in a Filipino television show which was broadcast in Australia and she reached out to him to reconnect.
Financial aspects of the relationship: reg 1.15A(3)(a)
32. When considering the financial aspects of the claimed spousal relationship, the Tribunal is required to have regard to: 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.
33. The delegate’s decision, a copy of which was provided to the AAT, notes no documentation whatsoever was provided to address the financial aspects of the couple’s relationship despite Mr Dela Cruz claiming in his Subclass 820 that they had opened a joint account.
34. The Tribunal has been provided with the bank statements for the couple’s CBA GoalSaver account last 4 digits # 6008 (the Joint Account) for the period from 13 March 2020 to 11 June 2025. In addition, it has been provided with Mrs Dela Cruz’s CBA Smart Access account last 4 digits # 5652 from 15 April 2019 to 12 June 2025 (Mrs Dela Cruz’s Account) and Mr Dela Cruz’s St George Bank Incentive Saver account last 4 digits #7162 for the period to September 2022 to 16 May 2025 (Mr Dela Cruz’s Account). Mrs Dela Cruz has also recently opened a Macquarie Platinum Transaction Account with Macquarie Bank. Based on the evidence provided and as discussed at the hearing, it is clear that the couple’s salaries are respectively paid each of Mr Dela Cruz’s Account and Mrs Dela Cruz’s Account. The couple transfer funds between their accounts including the Joint Account to pay for joint household expenses including rent, groceries, chemist and travel expenses as well as Internet and utility bills.
35. Evidence has been provided of the couple being currently recorded as policyholders and registered drivers on their Budget Direct insurance records of their Toyota Rav 4 and Jeep Compass. In addition, the Tribunal has also been provided with evidence of Mr Dela Cruz’s appointment of his wife Mrs Dela Cruz as the 100% beneficiary of his Australian Super fund. Mrs Dela Cruz has also provided evidence of her Hesta superannuation fund appointing each of her husband Mr Dela Cruz and her 4 children as a 20% beneficiary of the fund.
36. Mr Dela Cruz provided the Tribunal with evidence of his Child Support Assessment dated 20 May 2025 issued by Services Australia for monies payable to his former wife Cristina Dela Cruz in respect of his 2 sons. He is required to pay $546.23 per month to his former wife as child support payments. Mrs Dela Cruz confirmed at the hearing that she is fully aware of her husband’s obligations in this regard. Evidence was also provided of Mr Deal Cruz remitting funds to his father in the Philippines and to help his wife’s uncle who is her mother’s brother. The couple explained that they are now both elderly men who needs financial support.
37. Having regard to evidence provided, the Tribunal accepts that each of the couple contribute to day-to-day household expenses and that this is confirmed in the multiple bank statements provided, their respective Statutory Declaration sworn 21 May 2025 provided to the Tribunal prior to the hearing and oral evidence at the hearing.
38. Based on the evidence provided, including oral evidence at the hearing, the Tribunal is satisfied that the financial aspects of the couple’s relationship are indicative of a couple in a in a spousal relationship at the time of application and the time of this decision.
Nature of the household: reg 1.15A(3)(b)
39. Regulation 1.15A(3)(b) requires the Tribunal to consider the nature of the parties’ household including any joint responsibility for care and support of children, their living arrangements and any sharing of housework.
40. The delegate acknowledged receipt of some correspondence to the couple’s then declared address in Northcote Boulevard, Hammondville as well as Mr Dela Cruz’s statement that the couple were living in Whitford Road, Hinchinbrook at the time of lodgement of the isa application and some evidence of correspondence to that address. Despite claiming that Mrs Dela Cruz’s children were living at the Hinchinbrook address with the couple, the delegate notes no evidence was provided.
41. The Tribunal has been provided with a Tenant History Ledger acknowledging receipt of rent for the couple’s lease of the Hinchinbrook Property since 13 February 2024 and a copy of the signed lease for the property. Mrs Dela Cruz’s adult son Anpherny Manese currently lives with the couple at the Hinchinbrook Property as confirmed in his Form 888 provided prior to the hearing. His sisters each confirm that they have to live with the couple from time to time but have now moved on. On occasions, this also meant their partner and children stayed with the couple as confirmed by the Forms 888 from her children.
42. As noted above, the couple have a lived in 3 other rental properties prior to moving to their current home. The Tribunal acknowledges receipt of bank statements for each of the Joint Account, Mrs Dela Cruz’s Account as well as Mr Dela Cruz’s Account referred to above confirming the history of the couple’s residence at their successive homes. In addition, the Tribunal has been provided with copies of each of the signed leases for each of the couple’s 3 earlier leased properties.
43. The Tribunal also acknowledges Mr Dela Cruz’s responsibility to provide financial support to his 2 sons from his first marriage as confirmed by Child Support Assessment dated 20 May 2025 referred to above at para [36].
44. Having regard to evidence provided, including oral evidence at the hearing as well as comments in the statements from family and friends, the Tribunal is satisfied that the nature of the couple’s household is indicative of a couple in a spousal relationship both at the time of lodgement of Mr Dela Cruz’s visa application as well as at the time of this decision.
Social aspects of the relationship: reg 1.15A(3)(c)
45. In its consideration of the social aspects of the parties’ relationship the Tribunal is required to consider: whether the parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and, any basis on which the persons plan and undertake joint social activities.
46. As noted above and referred to in the delegate’s decision, the Department was provided with only one Form 888 from Violetta Calvert, a friend of Mrs Dela Cruz, who states that she attended the couple’s wedding on 8 February 2020. However, apart from this Statutory Declaration, no other evidence to demonstrate the social aspects of the couple’s relationship was submitted to the Department.
47. Seventeen Forms 888 and Statutory Declarations addressing the nature of the couple’s relationship accompanied the review application when it was lodged with the AAT in March 2022. These included statements from the couple’s Marriage Celebrant Nerida Dunkerley, Pastor Howard Harmer from the couple’s local church, and Mrs Dela Cruz’s colleague Dr Lourdes Tilde from the Palliative Medicine team at Liverpool Hospital.
48. Prior to the hearing, the couple provided 11 updated Forms 888 from family and friends sworn in the fortnight prior to the hearing. The Tribunal places significant weight on the content of these Forms 888, each of which have been individually drafted and warmly attests to the genuineness of the couple’s long-standing spousal relationship as well as providing details the declarant’s personalised interaction with the couple throughout their relationship. Evidence of each of the declarant’s signature and their citizenship or residence status in Australia was also provided to the Tribunal. The Tribunal gives particular weight to the Forms 888 from Mrs Dela Cruz’s step-father David Pickering (who also attended the hearing to give oral evidence regarding the genuineness of the couple’s relationship), her son Anpherny Manese and her 3 daughters Aleksie Tafao (nee Aleksie Manese), Monique Manese and Meizl Manese as well as Meizl Manese’s partner Katherina Gronenberg. As noted above, Anpherny Manese currently lives with the couple at the Hinchinbrook Property.
49. The Tribunal noted during the hearing that it had been provided with some evidence of Mr Dela Cruz’s declaring his spousal relationship to the Australian Taxation Office (ATO). However, evidence had only been provided for the year ended 30 June 2022. After the hearing, each of the couple provided their tax returns for years ended 30 June 2023 and 30 June 2024 confirming they have declared their spousal relationship to the ATO. Mrs Dela Cruz also provided her tax return for the year ended 30 June 2022 declaring her spousal relationship to the ATO.
50. During the hearing, the Tribunal also noted the absence of any statements from family in the Philippines. After the hearing, Forms 888 were provided from Mr Dela Cruz’s father, Danilo Dela Cruz, sworn 11 June 2025 in the Philippines as well as 2 of Mrs Dela Cruz’s friends who also live in the Philippines, Raquel Junco and Cesar Caguintuan. Each of the Forms 888 warmly attest to the genuineness of the couple’s enduring spousal relationship. Evidence of each of the declarant’s signature was also provided.
51. In addition, the Tribunal has been provided with multiple photographs of the couple together as well as with family and friends over the years including photographs with Mrs Dela Cruz’s 4 children and her grandchildren. The photographs confirm evidence of the couple sharing time at various locations with family and friends including during their inter-state trips together to Adelaide, Melbourne, the Gold Coast and holidays in regional parts of New South Wales including Jamberoo, Nelson’s Bay and Lake Conjola. Helpfully, most of the photographs are captioned with dates, location and the names of parties included.
52. Having regard to the voluminous evidence provided, including photographs, letters of support and Forms 888 from family as well as statements from friends in Australia and the Philippines, the Tribunal is satisfied that the couple represent themselves to family and friends as well as organizations including the ATO, their respective superannuation fund and Budget Direct insurance as being are married to each other in an enduring spousal relationship and that they plan and undertake joint social activities together.
Nature of persons' commitment to each other: reg 1.15A(3)(d)
53. In its consideration of the nature of the persons' commitment to each other the Tribunal is required to consider: the duration of the relationship; the length of time the parties have lived together; the degree of companionship and emotional support they draw from each other; and, whether they see the relationship as long term.
54. As set out in their decision, the delegate acknowledged the couple claimed to have met on 2 February 2017, committed to a relationship on 8 June 2019 and married on 8 February 2020. However, the delegate found that evidence provided to support the couple’s commitment to each other is limited and inconsistent with the claimed duration of their relationship.
55. The Tribunal has been provided with evidence of how the couple supported each other during the COVID-19 lockdowns when they both, unfortunately, contracted COVID-19. In addition, evidence has been provided of how they have supported each other complete their tertiary studies in nursing and thereby secure their current employment. To enable Mrs Dela Cruz to undertake her Nursing studies at the University of Western Sydney, her husband took on extra work as a Cleaner to help cover university fees. As noted above, Mr Dela Cruz currently works as an Assistant in Nursing at an aged care facility in Denham Court and Mrs Dela Cruz works as a Nurse at Liverpool Hospital. Mrs Dela Cruz also told the Tribunal about how her husband has helped her deal with a range of medical conditions that have impacted her ability to work full-time. The Tribunal has been provided with a signed letter from Dr Long Truong of Moorebank Family Medical Practice dated 13 May 2025 confirming details in this regard confirming Mrs Dela Cruz suffering from asthma, migraines and gastro-oesophageal reflux disease.
56. After the hearing, Tribunal was provided with a copy of the Will of each of Mr Dela Cruz and Mrs Dela Cruz made 8 June 2025. Mr Dela Cruz leaves his estate entirely to his wife Mrs Dela Cruz while she leaves the residue of her estate to be divided equally between her husband and her 4 children but only after any money in her bank account is shared equally between her grandchildren, present and future, who are alive at her death.
57. It is clear to the Tribunal that the couple are actively involved in the local Filipino diaspora. They are passionately engaged in supporting events including concerts and Mardi Gras volunteering to undertake backstage directing, lighting et cetera. Mr Dela Cruz and Mrs Dela Cruz proudly shared at the hearing their phone interview for a special broadcast on Valentine’s Day in February 2020 by Radio Tagumpay on Triple H100.1.[1] They were interviewed by Violet Calvert for a segment as One of the Best Couples. Violi Calvert is the Producer and Co-Broadcaster of the Filipino-Australian program Radio Tagumpay. She was an Inspiring Women 2023 award as part of the International Women’s Day awards on 21 March 2023.[2] Relevantly, it was Violet Calvert who provided the only Form 888 lodged with the Department by the couple’s former representative and, helpfully, she has provided the Tribunal with an updated Form 888 sworn 12 May 2025.
[1] Homepage - Triple H 100.1 FM
[2] Radio Tagumpay Producer & Co-Broadcaster Receives IWD Recognition - Triple H 100.1 FM
58. The couple shared with the Tribunal their plans to buy a motor home with a view to a taking a trip in late June and July 2025 to the Northern Territory via Broken Hill, Adelaide, Uluru and Alice Springs before returning to Sydney via Rockhampton, the Gold Coast and Port Macquarie. After the hearing, they provided details of their planned route and stop overs. They also have plans to travel overseas in 2026 with their daughter Meizl and her partner and, subject to her mother’s health improving, plans are on the agenda to travel overseas with David Pickering and Mrs Dela Cruz’s mother.
59. The Tribunal accepts that the couple’s spousal relationship has now been in existence for nearly 5½ years. Based on the detailed information set out in each of the couple’s respective Statutory Declarations accompanying the review application lodged with the AAT, their more recent Statutory Declarations sworn 21 May 2025 provided to the Tribunal prior to the hearing as well as oral evidence at the hearing, the Tribunal is satisfied that the couple provide each other with companionship and emotional support. The Tribunal is satisfied that they view their spousal relationship as long-term and that Mr Dela Cruz files the role not only of the committed partner of his wife but also the father and grandfather of her extended family as well.
60. The Tribunal is satisfied that the nature of the parties’ commitment to each other is indicative of a couple in a genuine spousal relationship at the time of application and as at the time of this decision.
Overall assessment of the spousal relationship
61. Based on the extensive evidence as to the couple’s financial and social aspects of their relationship as well as the nature of their household arrangements and their strong commitment to each other, the Tribunal is satisfied that both at the time of application and at the time of this decision Mr Dela Cruz and Mrs Dela Cruz are in a genuine spousal relationship.
62. The Tribunal is satisfied that Mr Dela Cruz and his wife Mrs Dela Cruz are married to each other in a marriage that is valid for the purposes of the Act. It also is satisfied that the couple have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship between them is genuine and continuing and, further, that they live together and do not live separately or apart on a permanent basis. Accordingly, the requirements in s 5F(2)(a) - (d) of the Act are met.
63. Therefore, Mr Dela Cruz meets both the time of application criteria in cl 820.211(2)(a) of Schedule 2 to the Regulations.
Is the applicant sponsored?
64. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include cl 820.211(2) which requires that the applicant was, at the time of application, sponsored by the sponsor who is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations) and who has turned 18, or where they have not yet 18 by the sponsor’s parent or guardian who has turned 18: cl 820.211(2)(c) of Schedule 2 to the Regulations.
65. 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 still be 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 of Schedule 2 to the Regulations.
66. 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.
67. As noted above, Mrs Dela Cruz sponsored her first husband’s residence in Australia. However, as that occurred more than 30 years ago, she is not impacted by the 5 year limitation on sponsorship in reg 1.2KA(2) of the Regulations.
68. During the hearing, the Tribunal acknowledged that, although Mr Dela Cruz was assisted with his Subclass 820 Partner visa application by a registered migration agent, documentation lodged with the Department was clearly deficient. Despite 2 requests pursuant to s 56 of the Act for further documentation including evidence of sponsorship, the couple did not provide all of the requested documentation. The couple’s failure to provide requested documentation led to the delegate refusing Mr Dela Cruz’s Subclass 820 visa application. The Tribunal noted during the course of the hearing, the absence of a Form 40SP Sponsorship for a partner to migrate to Australia. The couple independently told the Tribunal that their former representative did not inform them of any requests from the Department for further documentation.
69. After the hearing, Mrs Dela Cruz provided a completed Form 40SP to the Tribunal. Accordingly, Mr Dela Cruz now meets the requirements in cl 820.211(2)(c) of the Regulations. A copy of the Form 40SP signed by Mrs Dela Cruz dated 15 June 2025 will be provided to the Department.
70. The Tribunal will also provide the Department with Mr Dela Cruz’s Form 1023 Notification of Incorrect Answers with information in relation to his 2 sons from his first marriage. As noted by the Tribunal during the hearing, this information had not been previously provided to the Department.
Conclusion
71. Given the cumulative findings outlined above, the Tribunal is satisfied that, at the time the visa application was made, Mr Dela Cruz was in a spousal relationship with his sponsor Mrs Dela Cruz as required by cl 820.211 of Schedule 2 to the Regulations.
72. Further, the Tribunal is satisfied that, at the time of this decision, the couple continue to be in a spousal relationship as required by cl 820.221 of Schedule 2 to the Regulations.
73. Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to enable consideration of the remaining criteria for a Subclass 820 visa.
DECISION
74. 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
·cl 820.221 of Schedule 2 to the Regulations
Dates of hearing(s): 6 June 2025
Representative for the Applicant: Mrs Marites Coria Dela Cruz
ATTACHMENT - Extracts from Migration Act 1958 and Migration Regulations 1994
Migration Act 1958
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5F Spouse
(1) For the purposes of this Act, a person is the spouseof another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
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Migration Regulations 1994
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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).
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Schedule 2
Subclass 820 -- Partner
820.21- Criteria to be satisfied at time of application
820.211 (1) The applicant:(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(b) [repealed]
(c) the applicant is sponsored:
(i) if the applicant's spouse or de facto partner has turned 18 - by the spouse or de facto partner; or
(ii) if the applicant's spouse has not turned 18 - by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(d) in the case of an applicant who is not the holder of a substantive visa - either:
(i) the applicant:
(A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and
(B) satisfies Schedule 3 criterion 3002; or
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.
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820.22 - Criteria to be satisfied at time of decision
820.221 (1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:(a) continues to meet the requirements of the applicable subclause; or
(b) meets the requirements of subclause (2) or (3).
(2) An applicant meets the requirements of this subclause if the applicant:
(a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and
(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(c) has developed close business, cultural or personal ties in Australia.
(3) An applicant meets the requirements of this subclause if:
(a) the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring partner:
(C) has been granted joint custody or access by a court; or
(D) has a residence order or contact order made under the Family Law Act 1975; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
Note: For special provisions relating to family violence, see Division 1.5.
(4) If paragraph 820.211(2)(c), (5)(f) or (6)(c) requires the applicant to be sponsored:
(a) the sponsorship has been approved by the Minister and is still in force; and
(b) the sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC(2)).
Note 1: Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister's discretion to approve sponsorships.
Note 2: The sponsor may be asked to consent to the disclosure mentioned in paragraph (b) on the approved form required to be completed by the sponsor in relation to the visa application.
(5) For the purposes of subclause (4), the conviction of the sponsor for a relevant offence is to be disregarded if:
(a) the conviction has been quashed or otherwise nullified; or
(b) both:
(i) the sponsor has been pardoned in relation to the conviction; and
(ii) the effect of that pardon is that the sponsor is taken never to have been convicted of the offence.
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