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…

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.

Continue reading Estela Vasquez (Migration)

Details

AGLC: Estela Vasquez (Migration) [2025] ARTA 563
Case: [2025] ARTA 563
Decision Date: 18 March 2025

CaseChat Overview and Summary

The case involves Estela Vasquez, a visa applicant, and her sponsor, an Australian citizen, who is challenging the decision to refuse her Partner (Temporary) (Class UK) visa under Subclass 820. The dispute revolves around whether the applicant was the de facto partner of the sponsor at the time of the application and, subsequently, if she was the spouse of the sponsor at the time the decision was made. The matter was brought before the Migration Review Tribunal, which found the decision under review to be flawed and remitted the case for reconsideration.

The primary legal issues the Tribunal had to address were whether the visa applicant was in a de facto relationship with the sponsor at the time of the application and whether she was the spouse of the sponsor at the time of the Tribunal's decision. The Tribunal had to consider the evidence of the financial and social aspects of the relationship, the nature of the household, and the commitment of the parties to each other. It also had to examine if the relationship was genuine and continuing and whether it met the statutory and regulatory requirements for a de facto relationship or a married relationship.

In reaching its conclusion, the Tribunal found the applicant and sponsor to be credible witnesses. The Tribunal noted that the applicant and sponsor had registered their relationship under the New South Wales Births Deaths and Marriages Registration Act 1995 on 9 December 2018, which satisfied the requirement for a registered relationship. As such, the 12-month duration requirement did not apply. Additionally, the parties had married on 9 July 2022, which was valid under the Act. The Tribunal also found that the relationship met the requirements of a genuine and continuing relationship, including the financial and social aspects, and that there was a mutual commitment to a shared life. Given these findings, the Tribunal concluded that the decision under review was flawed and remitted the case back to the Department of Home Affairs for reconsideration.

The Tribunal's final orders were to set aside the decision under review and to remit the matter to the Department of Home Affairs for reconsideration in light of the Tribunal's findings.

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 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?

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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