Estela Vasquez (Migration) - [2025] ARTA 563

ESTELA VASQUEZ (MIGRATION) [2025] ARTA 563 (18 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Wilian Estela Vasquez
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2110177

Tribunal:General Member A Grant
Place:Melbourne
Date: 18 March 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(2) of Schedule 2 to the Regulations;
·Regulation 2.03A; and
·cl 820.221(1)(a) of Schedule 2 to the Regulations.

Statement made on 18 March 2025 at 4:17pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – financial aspects of the parties’ relationship points in favour of them being in a genuine and continuing relationship – parties have shared a home since 2018 – social aspects of the relationship are consistent with a de facto and married relationship – at the time of decision that the parties pooled financial resources – applicant and sponsor are married in a valid marriage – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, r 2.03A, Schedule 2, cls 820.211,820.221
CASES
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 applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 12 April 2019 on the basis of his relationship with his 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 delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because they were not satisfied that the visa applicant was the de facto partner of the sponsor at the time of application for the visa.
The applicant and sponsor appeared before the Tribunal at a hearing held by video conference using the Microsoft Teams Application on 14 February 2025 to give evidence and present arguments. The parties gave their evidence separately. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The applicant was represented in relation to the review, and the applicant’s representative also attended the hearing by video connection. At the conclusion of the hearing, the parties requested time to provide some final financial statements. Those were received on 21 February 2021, and include various bank statements for the past six months up to February 2025, including accounts in joint names, in the visa applicant’s name and in the sponsor’s name.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant was the de facto partner of the sponsor at the time of application and if so, whether he is the spouse of the sponsor at the time of making this decision. (The parties have provided evidence of their marriage at the Registry of Births, Deaths and Marriages, Parramatta on 9 July 2022.) Having had the opportunity to meet the visa applicant and sponsor and to take evidence from them separately, I found them to be frank and credible witnesses and accept the evidence they gave.
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 de facto partner of the sponsor at the time of application and the spouse of the sponsor since 9 July 2022. The sponsor is an Australian citizen.
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.
‘De Facto Partner’ and ‘Spouse’ are defined in sections 5CB and 5F of the Act respectively: Persons are in a de facto relationship or a married relationship if there is a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship is genuine and continuing, and the couple live together, or not live separately and apart on a permanent basis. If a married relationship is claimed, the marriage must also be a valid marriage.
In forming an opinion about whether parties are in a married or de facto relationship, 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.
Was the de facto relationship of 12 months length or registered under NSW law at the time of application? Are the parties validly married at the time of making this decision?
The visa applicant has not been previously married, or declared a previous de facto relationship. The sponsor has provided evidence of her divorce and the cessation of previous relationships. The parties registered their relationship pursuant to the Births Deaths and Marriages Registration Act 1995 (NSW) on 9 December 2018.
At the time of application the visa applicant was aged 33 and the sponsor aged 53. The visa applicant satisfied subregulation 2.03A(2). The applicant has provided evidence that the relationship was registered under the New South Wales Births Deaths and Marriages Registration Act 1995 on 9 December 2018. It is therefore a registered relationship within the meaning of s 2E of the Acts Interpretation Act 1901 (Cth): reg 2.03A(5). Accordingly, the 12 month requirement does not apply and the applicant meets subregulation 2.03A(3). (In fact, the parties had been living together since March 2018 so would satisfy the 12 month requirement, regardless.) I find that the applicant meets the time of application additional criteria prescribed in regulation 2.03A.
The parties are now married. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The marriage certificate provided by the parties establishes that they married on 9 July 2022 in Parramatta. No legal impediment to their marriage arises on the information before the Tribunal. On the evidence, the parties are married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a) at the time of making this decision.
Are the other requirements for a de facto/spouse relationship met?
Section 5CB describes when a person is the de facto partner of another person. As noted above, it requires that they are not in a married relationship but have a mutual commitment to a shared life to the exclusion of all others, that the relationship between them is genuine and continuing, and that they live together and not separately apart on a permanent basis. They must also not be related by family.
There is no information before the Tribunal in this case suggesting that the parties are related to each other, and I accept that they are not related by family.
Regulations 1.09A and 1.15A(3) provide arrangements for the purposes of determining whether parties are in a de facto or spouse relationship respectively. Those matters are the financial and social aspects of the relationship, the nature of the household, the nature of their commitment to each other and any other relevant matter.
A large amount of documentary supporting material has been submitted by the visa applicant and sponsor at the time of application and during the review process. Regard has been had to that information and evidence and some of that evidence is referred to further below.
History of the Relationship
The visa applicant is a 39-year-old man born in the state of Amazonas, Peru. The sponsor is a 58-year-old woman, a citizen of Australia born in Lima, Peru. According to the information submitted, they met in September 2017 at the home of a mutual friend. The visa applicant moved into the sponsor’s rented home in Lakemba shared with her young adult son, Sebastian on 5 March 2018. The parties state that their de facto relationship started at that time. In 2018, the sponsor’s son was nineteen years old. As noted above, a New South Wales Relationship Certificate has been provided demonstrating that the parties’ relationship was registered in New South Wales on 9 December 2018.
The application for the visa was lodged on 12 April 2019. The parties married on 9 July 2022 in Parramatta, New South Wales.
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; any sharing of day-to-day household expenses.
At hearing, the parties described how the applicant moved in with the sponsor in order that they could be together and also because it would allow them to share their daily expenses, including rental. They have maintained existing separate accounts but also have a joint account with the ANZ into which they each contribute as needed, opened in 2018. Bank Statements demonstrate that the visa applicant makes sizeable deposits into that account, as does the sponsor. Their evidence reflects that they share financial and savings decisions. Receipts for whitegoods have been provided and demonstrate that significant items have been delivered to their shared home around the time that they commenced to live together. At the time of application, the parties said that the visa applicant paid the rent and the sponsor pays for weekly shopping, electricity and internet costs, and they save together for their future and emergencies.
The sponsor works as a personal care worker. The visa applicant works as a construction worker for a business known as San Marcos, and earns around six thousand dollars a fortnight before tax. Some big transfers to that name were noted in the bank accounts and the parties confirmed that they had loaned some money to his employer (who is also his friend) when they needed it. It was a shared decision, and the loans were later repaid. The visa applicant gave evidence that he has an account for some personal savings and for paying his tax obligations which currently had a balance of around $8,000. They have a Joint Commonwealth Intensive Savings Account which currently has a balance of about $115,000. The bank statement submitted after hearing reflects that the joint savings account had a balance of $108,468 as at the 4 January 2025, so is consistent with their evidence. The other bank statements also had balances which were consistent with the evidence they gave at hearing. The parties both confirmed that they consider all savings, in whoever’s name they may be, to be the shared matrimonial resources.
The parties described at hearing how they share all their expenses and also continue to maintain different accounts for their salaries and savings. They each gave evidence that they consider their financial resources are openly shared, as are all financial decisions. At hearing they were aware of each other’s accounts, and also specifically of the balance of their respective accounts and savings, regardless of the names on the accounts. At the time of application, the parties provided bank statement for a St George Incentive Saver Account in the sponsor’s name which had a balance of $54,148 as at 20 April 2020, and $45,546 at 20 October 2020.
A large withdrawal of $90,000 was noted from one of the bank accounts on 15 June 2021. At hearing, each of the visa applicant and sponsor confirmed that this withdrawal related to the purchase of the Chester Hill property (where they later lived) by the sponsor’s son, and was their gift to him. The sponsor observed that it was money they had been saving for their own future but the visa was taking so long that they decided to give it to Sebastian, so that he would own his first property where they would then live. They pay him $900 per fortnight rent, which helps towards the mortgage, but their names are not on title and they have no financial interest in the property. The visa applicant said they were happy to be able to help Sebastian buy that apartment. They each expressed a hope that they would be in a position to buy their own house once the applicant’s visa is granted.
On the evidence, I find that the parties jointly own their savings, that they pool their financial resources, and that they share their day-to-day household expenses.
Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.
At first the parties shared the home rented by the sponsor in Lakemba with the sponsor’s son. Lease agreements have been provided demonstrating that the parties’ joint names were on the property as tenants from 18 August 2018. According to the application and the evidence given by the parties, they share the household chores between them as needed and dependent on who has free time. The child Sebastian was already a young adult when they started living together and the applicant describes how they watched movies with him in the home. According to the application, on weekends the applicant and sponsor do the general cleaning of the home and shop together for the household needs.
The sponsor’s son in his first supporting declaration described how the visa applicant cares for him, ‘even though he is not his son’ and buys him little gifts from time to time. In a second supporting letter, he describes how the visa applicant volunteered to pay for his tuition and tutoring, which demonstrated that he cared about the young man’s study and potential.
From August 2021, the parties moved to the property in Chester Hill purchased by the sponsor’s son. Initially, the three of them moved to the property but after about one year, the sponsor’s son moved closer to his work and the parties now live in Chester Hill together. Rent receipts provided show that rent is paid on a fortnightly basis. At hearing it was noted that the rental receipts appeared incomplete and the agent of the applicant apologised, saying that because of the large number, they only copied and sent in one side of the receipt books. If wanted, the rest of the rent receipts could be provided. It was accepted that there was no need to do so.
Based on the evidence I find that the parties have shared a home since 2018, that they share household chores and the support of the sponsor’s children, and otherwise manage their household as a couple in an unremarkable manner.
Social aspects of the relationship – including whether 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 n which the persons plan and undertake joint social activities.
The application states that the parties spend moments with each other and with friends. They share their lives with the sponsor’s two (adult) children, such as going to the movies, out to dinner and meetups with friends. The parties have friends in common also from Peru so they spend time with them at birthdays, dinners, barbecues etc. They also go to dances. At the time of application, both families lived in Peru so they had only met each other’s families through social networks. The sponsor met the visa applicant’s family in 2019 when she travelled to Peru.
Supporting statements have been provided from the sponsor’s children (both at the time of application and in the course of the review) in which they each confirm their belief that the relationship between their mother and the visa applicant is genuine. At the time of application, a supporting statement was also provided by Marcos Vilches, a friend of the sponsor for more than five years. Mr Vilches attests that he has seen the visa applicant and sponsor together on many social occasions and at church, and that he has heard them speaking about long term plans and marriage.
A letter from Ms Alexandra Ceroni (a Latin American Dancing club member with the sponsor) was provided at the time of application. She states that she met the applicant around two years prior when introduced by the sponsor. Ms Ceroni confirms that they have been at each other’s homes for dinners and lunches, and that the visa applicant and sponsor have presented themselves as an extremely hard working, caring and loving couple who provide support and care for each other.
A large number of photographs have been provided depicting the visa applicant and sponsor together and with friends and family at a range of different social occasions over several years, including their wedding. These photographs suggest that the parties plan and attend social events together as a couple.
At hearing the parties confirmed that their families and friends support and enjoy their relationship.
On the evidence, I find that the parties represent themselves to other people as being married to each other; that their friends and acquaintances consider them to be a genuine and committed spousal couple, and that they plan and undertake joint social activities and have done since they commenced living together in 2018.
Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.
The relationship continues and has now been in existence since 2018, which is a considerable period. The applicant states in his application that he fell in love with the sponsor as a conservative, mature and determined woman. He states that they shared aspirations and goals, and since they’ve been living together their bond has strengthened. He states that he wants to spend the rest of his life with her, to love, respect, support and take care of her, making her happy. The parties married in July 2022. They contributed a significant sum towards the sponsor’s son’s purchase of his first property in 2021. At hearing, the parties each agreed that helping Sebastian purchase the property was a joint decision made from savings they had saved together.
I asked the parties separately what would happen if the visa was refused again, and the visa applicant had to return to Peru. They each expressed a desire to remain in Australia, particularly because of the sponsor’s children and grandchildren here, and because they have built their future here together. However the sponsor indicated that she would consider going to Peru if it came to that, until a visa could be granted, even though she would not want to leave her children and her grandchildren - because she cannot live without the visa applicant.

I consider the parties’ marriage, and the sizeable contribution towards a property owned by a child of the sponsor is a significant demonstration of the parties’ long-term commitment to each other and to their family, and that their savings and commitment to future family goals reflects their shared planning for the future. It is also accepted that they have shared plans to travel together and to buy a home together. Based on the evidence given about the nature of their commitment to each other, I find that the parties have been in a genuine relationship and committed to each other since 2018, that they provide companionship and emotional support to each other and that they both consider the relationship to be a life-long commitment and marriage.
Any other circumstances of the relationship.
The parties were in a de facto relationship at the time they applied for the visa and are now married. The various aspects of the relationship and my findings on each of them as discussed above have been considered against the time of application and the time decision criteria. To be clear, whether the aspects of the relationship are assessed using the married or de facto relationship provisions, the conclusion would be the same. The Tribunal is satisfied that at the time of applying for the visa, the visa applicant and sponsor were mutually committed to a shared life to the exclusion of others, that theirs was a genuine and continuing relationship, and that they lived together on a permanent basis. The parties were de facto partners at the time of application and the visa applicant satisfied cl 820.211(2)(a). The applicant is sponsored by his de facto partner, who is an Australian citizen, and there is nothing in the material before me that suggests she is prohibited from being a sponsoring partner. He meets cl 820.211(2)(c). At the time of application, the visa applicant held a substantive visa, (a Subclass 500 visa granted 3 February 2018 and in effect until 12 June 2019) and therefore cl 820.211(2)(d) does not apply. The visa applicant satisfied cl 820.211(2) at the time of applying for the visa.
At the time of making this decision, the Tribunal is satisfied that the visa applicant and sponsor are married in a valid marriage, and that they continue to be mutually committed to a shared life to the exclusion of others, that theirs is a genuine and continuing relationship, and that they live together on a permanent basis. The visa applicant is the spouse of the sponsor as required by cl 820.221(1)(a).
On the basis of the above findings the Tribunal is satisfied that the requirements of s5CB and s5F(2) are met at the time the visa application was made and at the time of making this decision, respectively.
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 consider the remaining criteria for a Subclass 820 visa.
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(2) of Schedule 2 to the Regulations;
·regulation 2.03A; and
·cl 820.221(1)(a) of Schedule 2 to the Regulations
Dates of hearing(s):  14 February 2025
Representative for the Applicant:           Mr Melany Ramos (MARN: 9896522)
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).