Goco (Migration) - [2025] ARTA 430

GOCO (MIGRATION) [2025] ARTA 430 (20 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Kimberly Jeane Goco
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2119078

Tribunal:General Member Grant
Place:Melbourne
Date: 20 February 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; and
·cl 820.221(2) of Schedule 2 to the Regulations.

Statement made on 20 February 2025 at 2:31pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – sponsor deceased – new relationship registered – Australian citizen child – money transfers – applicant’s care for the sponsor – applicant acceptance by the new partner’s family – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024, s 106
Migration Act 1958, ss 5, 11A, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15
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 relevant Minister on 13 December 2021 to refuse to grant the visa applicant a Partner (Class BS) Subclass 820 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 27 March 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 applicant (who is not represented) applied for review of the delegate’s decision on 14 December 2021 via the Administrative Appeals Tribunal website. However the wrong application form was completed (with the applicant completing a form for review in the General Division instead of the Migration and Refugee Division). On the same day, the Tribunal requested that the correct form be completed and lodged. On 24 December 2021, the visa applicant completed the correct form applying for review of a decision in the Migration and Refugee Division of the Administrative Appeals Tribunal and paid the required fee. In that application for review, she identified the decision she sought to review as the subclass 801 refusal.
Over the period after requesting review of the delegate’s decision and before the matter was constituted to a member, the visa applicant submitted extensive information related to her relationship with the sponsor, her ongoing relationship with him until his death, and that she has after his death established an ongoing relationship with a new partner with whom she has an Australian citizen child (born in 2024.) These submissions clearly addressed the reasons for which the visa applicant’s 820 visa was refused, (that she continued to be the spouse of the sponsor until he died and has established close personal ties in Australia,) and not the refusal of the subclass 801 visa.
When the matter was constituted to me, I identified that the visa applicant may have inadvertently misidentified the refusal of the permanent stage visa in her application for review as the decision she was seeking to review. On 12 February 2025, the Tribunal wrote to her alerting her of the difference between the two Subclasses and asked her to confirm which visa subclass refusal she was seeking to review. On 13 February 2025, the visa applicant wrote to the Tribunal officially requesting that the Subclass of visa on her application for review be amended to reflect the refusal of the Subclass 820 visa instead of the Subclass 801 visa. The Tribunal has amended the Subclass visa as requested in the review on its’ records and I now proceed to determine this review of the refusal of the applicant’s Subclass 820 visa.
After reviewing the extensive submissions made by the applicant (summarised below), I considered that I could make a decision on the review without holding a hearing because it would be wholly favourable to the visa applicant (s.106(2) Administrative Review Tribunal Act.) Consequently, the visa applicant was not invited to attend a hearing to give evidence or make further submissions.
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 visa applicant was granted a subclass 300 visa on 2 November 2017 due to her intention to marry the sponsor, Gregory Robert Sawers. She first arrived in Australia on that visa on 31 January 2018. That visa subsequently ceased and the applicant departed Australia on 19 August 2018, returning on a Subclass 600 visitor visa on 21 January 2019. On 25 January 2019, the applicant and sponsor married at the Registry of Births, Deaths and Marriages in Sydney, New South Wales, and lodged an application for a subclass 820/801 visa on 27 March 2019.
The sponsor died from hepatocellular carcinoma at the home he shared with the visa applicant on 26 November 2020. The marriage and death certificates have been provided to the Department by the applicant.
Clause 820.211(2)(a) requires that at the time the visa application was made, 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 claimed to be the spouse of the sponsor who was an Australian citizen. Clause 820.221(2) requires, at the time of decision, (in situations such as that of the visa applicant in this case) the visa applicant would have continued to be the spouse of the sponsor except that the sponsor has died.
‘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. Evidence has been provided of the parties’ marriage in Sydney on 25 January 2019. 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).
The issue in the present case is whether the visa applicant was the spouse of the sponsor at the time of application, and if so, whether she would have continued to be his spouse except that the sponsor has died. As footnoted above, cl 820.221(2) no longer requires the visa applicant to additionally demonstrate that she has developed close personal, cultural or business ties in Australia, which was the reason given for the refusal of the applicant’s subclass 820 visa.
A perusal of the delegate’s decision reveals that the delegate was satisfied that the visa applicant was the spouse of the sponsor at the time of application. The delegate then proceeded to consider cl 820.221(2) and found that the visa applicant had not developed close business, cultural or personal ties in Australia, so did not satisfy cl 820.221(2)(c) the relevant parts of which then provided:
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.
The requirement in subclause 820.221(2)(c) above was removed with effect from 30 June 2024. From that date, the time of decision criteria are as follows:
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.
According to the amending legislative provisions, the change to this subclause applies to all applications not finally determined as at 30 June 2024. According to section 11A(1)(a) of the Migration Act, an application is finally determined when a decision that has been made in respect of the application is not, or is no longer, subject to any form of review by application to the ART under Part 5. The applicant’s review is still under review by the ART. Hence, the change to the provisions applies in this case.
I turn now to my consideration of the criteria in clauses 820.211 and 820.221 relevant to the issues in this review.
At the time of applying for review and prior to the decision made by the delegate (dated 13 December 2021), the applicant and sponsor submitted documentation in support of the application, including documents and information as follows:
·     Visa application lodged 27 March 2019 addressing the aspects of the relationship. In this application, the applicant states that the sponsor has supported her financially since the first day they met, that they rented a house in Philippines and brought furniture and rented the property in the sponsor’s name. She states that her family, relatives and friends have known the sponsor since he first came to the Philippines and he was a friend of her family on social media. They have been in a relationship for more than three years before their marriage on 25 January 2019, though they have known each other (at first online) since 2012.
·     Declarations in support of and attesting to the genuineness of the relationship between the sponsor and the visa applicant from friends of the sponsor and visa applicant Theodore ANAST (4 March 2019), Jeremy HUTTON (3 March 2019 and 28 September 2020) Merlin CURRAN (2 March 2019), Kwong TAM (5 March 2019); Francesco De MACEDO SILVA (30 September 2020).
·     Letter (not dated or formally declared) in support of and attesting to the genuineness of the relationship between the sponsor and the visa applicant by the sponsor’s sister Maricris GOCO;
·     Marriage Certificate demonstrating the marriage of the sponsor and visa applicant in New South Wales on 25 January 2019 and photographs of the wedding ceremony;
·     Commonwealth Bank Statement in joint names created 6 February 2019 and reflecting significant transactions;
·     The Sponsor’s Centrelink income statement showing he was receiving Centrelink payments as a single person as at 11 March 2019[1];
[1] Later documents suggest that Centrelink was aware of the parties’ marriage prior to the sponsor’s death, because they relate to a request that she, as his wife, be considered for carer payment as his illness progressed.
·     National police certificate disclosing court results of various prosecutions against the sponsor from 1964 to 2012 and identification documents for sponsor;
·     Photographs of the applicant and sponsor at social functions;
·     Rental agreement in the sponsor’s name in Batangas, Philippines dated 17 February 2016;
·     Messenger chat and video records between the visa applicant and sponsor when the visa applicant travelled overseas for a period in 2019;
·     Medical evidence from the sponsor’s medical practitioner Dr Tam dated 22 February 2020 addressed to Centrelink, outlining the sponsor’s extensive medical conditions including terminal liver cancer and stating that he ‘needs his wife as permanent 24 hours carer to look after him.’
·     Letter from NSW Cardiology Acting Professor McCrohon at St Vincent’s Hospital dated 25 February 2020 in which she states that (amongst other things related to his diagnosis) “He has requested that his wife be considered as a formal carer for him and I would support this, particularly over the next 6-12 months when his health remains quite guarded and his general condition remains frail.”
·     Letter from Acting Professor Strasser at the AW Morrow Gastroenterology and Liver Centre in which she confirms that he requires support from a full time carer.
·     Statement from the sponsor dated 28 September 2020, in which he describes the development of their relationship since 2012, his proposal and decision to support her financially from their engagement, that he went to see her in January 2016 and met her family, rented an apartment for her and paid the costs thereof. He describes how they continued the relationship when he returned to Australia, how they applied for and were granted the ‘’fiance’ visa, she came to Australia and has lived with him when in Australia since then.
·     Public Housing records for the property rented by the sponsor in Glebe;
·     Correspondence addressed to the visa applicant at the property she shared with the sponsor in Glebe;
·     Evidence of the sponsor sending funds via PAYID to the visa applicant during 2020;
·     Letter from the visa applicant describing the development of the relationship, that they had a child together who was born after the Subclass 300 visa was applied for and remains in the Philippines; and their day-to-day relationship living together in Australia. She also describes how they went to Philippines together in October 2019 to celebrate their child’s birthday and see him. She states that they decided not to take him to Australia at that stage because of the sponsor’s poor health and the care needed. She describes how they plan to build a house in the Philippines in the future.
·     Letter in response to natural justice letter sent to the visa applicant, dated 4 February 2021. In this letter, the applicant describes how she met her husband more than six years earlier and that they were in an online relationship since 2015. They first met in person in January 2016, and she introduced him to her family and relatives in Philippines. They continued the relationship when he returned to Australia, by social media. The sponsor financially supported her, and they applied for a visa which was approved in the last months of 2017. The applicant came to Australia in 2018 and lived with the sponsor. Initially things were a bit different because of the cultural differences but she settled in and then her husband was diagnosed with liver cancer, after which they had hospital, tests, and alternative treatments which they tried. The applicant describes 2020 as the hardest part of their life. She was there alone for her husband for all of his hospital admissions, she met all his doctors and professors. She described his various medical conditions, and that in 2020 he became very sick and suffered a lot. He didn’t want to go to hospital any more, so the nurses and doctors came to their house two or three times a week. The applicant couldn’t do more than care for him for many months, due to his illness. She describes how his health deteriorated and she was his ‘feet and his eyes and everything’. They were relying on his pension. When her husband died, she was broke and alone, and after a month the housing was terminated. This was around when the department asked for more information. She states that if he hadn’t died, she would still be his wife.   The applicant asks that she be treated fairly.
·     Statements were also provided from the sponsor’s immediate family; his son and daughter in law. These statements attest that the visa applicant remains close to them and has established ties with family and friends in Australia. The sponsor’s son states that he has seen her genuine and sincere commitment to his father; that they had a wonderful relationship, and cared for him full time until his death. He adds that he believes they would have continued to maintain a happy and fulfilling relationship if he had not passed away.
In the process of review, the visa applicant provided further information and evidence as follows (documents previously listed and referred to above have not been repeated):
·    Payslips from Woolworths in the visa appilcant’s name and employment letter of offer;
·    Payslip from KanClean in the visa applicant’s name;
·    Email 13 November 2023 advising that she is now legally in a relationship with an Australian citizen Samuel ROWE, and is expecting a child due on 10 February 2024. Attached is her partner’s identification and proof of pregnancy.
·    Also attached is a NSW Relationship Certificate registering their relationship on 9 November 2023.
·    Commonwealth Bank Account joint statement in name of visa applicant and new partner, created 12 December 2024;
·    Evidence showing transfers from new partner to visa applicant over 2024;
·    Statement relating to the nature of the household, financial and living arrangements with the applicant’s new partner. Also included are invoices from utility companies addressed to him at the applicant’s address provided to the Tribunal.
·    Payslip for applicant’s new partner;
·    Birth Certificate for a child Hailey born 3 February 2024 to the visa applicant and her new partner.
·    A letter from the applicant’s new partner stating that he first met her in July 2020 and initially were just friends. They started dating in September of 2021. They moved in together very soon after they started dating. He provides information about their ongoing relationship and shared household. He confirms that he proposed to her in July 2024 and they plan to marry in the next two years.
·    Statements from several friends of the applicant’s new partner and the applicant have been provided in support of their genuine relationship.
·    Also provided is a statement from the applicant’s new partner’s parents and brother in which they confirm the applicant’s relationship with Mr Rowe and welcome her into their family.
·    Photographs of the applicant with her new partner and the applicant’s son from the previous relationship, and with their daughter.
Time of Application Criteria
As noted above, the visa applicant was initially granted a subclass 300 visa and came to Australia, intending to marry the sponsor. However, their marriage did not take place within the requisite time frame so she returned to the Philippines and obtained a visitor visa. She later returned to Australia and the parties married on 25 January 2019. At the time of applying for the visa, the applicant held a subclass 600 visitor visa, which is a substantive visa.

The sponsor already had significant health conditions by the time they married, and the evidence as noted above suggests that the visa applicant stayed by his side as his wife, caring for him over the period from when she arrived in Australia as his condition deteriorated and until his death. They shared the home, she accompanied him to medical appointments, cooked and cleaned for him and undertook the chores he was unable to perform. As a direct consequence of the sponsor’s illness, the visa applicant was unable to work until after his death. The visa applicant had no income and so they lived off the sponsor’s pension, suggesting that they pooled their limited resources as best they could.
Although the Centrelink statement noted above might appear on face value to suggest that the sponsor had not declared his marriage or relationship at that time, this statement is not determinative of that issue, because of provisions in the Social Security Act and policy which enable Centrelink not to treat a person as a member of a couple where there is a special reason not to do so – for example where a person’s partner is prohibited from working, the couple are experiencing financial hardship, or where a person’s partner is providing full time care for the person, and unable to earn an income. In any event, taking into account his deteriorating health over the period of their relationship, I do not give the ‘single notation on the sponsor’s Centrelink record any significant weight in this case. The visa applicant was described as his wife on his death certificate and I give that and the letters from his doctors significant weight as suggesting that their spousal relationship was known to and recognised by all official and medical bodies.
I also accept that their relationship was recognised and supported by their families and friends. They had a child together, though that child remained in Philippines and not with them.
Like the delegate, I am satisfied that the visa applicant and the sponsor were in a married relationship at the time of applying for the visa in March 2019. They were mutually committed to each other to the exclusion of all others, they were married to each other under a marriage that is valid, and the relationship between them was genuine and continuing. They lived together on a permanent basis. The applicant satisfied subclause 820.211(2)(a) at the time of application. She was sponsored by her spouse and therefore satisfied subclause 820.211(2)(c). The visa applicant held a substantive visa at the time of application and so subclause (d) does not apply in this case.
The applicant satisfied cl 820.211(2) at the time of application.
Time of Decision Criteria
The sponsor passed away on 26 November 2020. The applicant has provided evidence that she and the sponsor continued to live together until his death, and that she cared for him until his passing. Evidence from the applicant in the form of her statement, from the hospital in the form of supporting letters and photographs, and from the sponsor’s son reflect, and I accept, that the visa applicant remained by the side of the sponsor as his wife, providing care and support during his terminal illness until his death. The applicant is recorded as his wife on the sponsor’s death certificate. The information provided also reflects that the visa applicant relied on the sponsor’s pension to support them both until his death, and that she was unable to work due to her caring responsibilities.
Consideration of the financial and social aspects of the relationship at the time of the sponsor’s passing reflect that the visa applicant was his spouse and considered so by his family, their friends and by the hospital and medical staff until his death. Consideration of the nature of the household reflects that the visa applicant cared for the sponsor as his wife until his death, undertaking household and caring roles in their home that he was unable to undertake. Finally, the visa applicant and sponsor continued to remain committed to each other until his death, as demonstrated in the evidence provided.
I am satisfied that the visa applicant would continue to meet the requirements of subclause 820.211(2) except that the sponsor has died, and that she would have continued to be the spouse of the sponsor if he had not died. Given the passage of four years since his death, the applicant’s subsequent relationship does not, in my view, have any direct relevance to the genuineness of her marriage to the sponsor here being considered.
The finding of the delegate and the basis on which the visa application was refused (that the visa applicant has not demonstrated close business, cultural and personal ties in Australia) no longer applies, as explained earlier in this decision. I do observe that even had that section continued to apply, I would have been satisfied that the applicant has demonstrated close personal ties in Australia.
On the basis of my findings above, the applicant satisfied cl 820.211(2) at the time of application and satisfies cl 820.221(2) at the time of making this decision. Consequently, the decision will be set aside with orders accordingly.
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; and
·cl 820.221(2) of Schedule 2 to the Regulations