Magallanes (Migration) - [2025] ARTA 1331

MAGALLANES (MIGRATION) [2025] ARTA 1331 (15 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Thelma Bagat Magallanes
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2507572

Tribunal:Senior Member M Bourke
Place:Melbourne
Date: 15 July 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) and cl.820.221 of Schedule 2 to the Regulations.
·reg. 2.03A

Statement made on 15 July 2025 at 12:15pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – age difference and limited evidence provided to department – detailed statements and documentation provided to tribunal – financial, household and social aspects of relationship and nature of commitment – relationship less than 12 months at time of application – now registered – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65
Administrative Review Tribunal Act 2024 (Cth), s 106(1), (3)
Acts Interpretation Act 1901 (Cth), s 2E
Migration Regulations 1994 (Cth), rr 1.09A(3), 2.03A(5), Schedule 2, cl 820.211(2), 820.221
CASES
Bretag v MILGEA [1991] FCA 582
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 23 October 2023 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, in this review, this is the applicant.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2) because the delegate was not satisfied there was sufficient evidence and information to demonstrate that the applicant was the de facto partner of the sponsor.
The Tribunal has considered the information available to the Department delegate, and the information contained in the Department’s decision record dated 20 February 2025. The Tribunal has considered the further information and evidence provided to the Tribunal. The only parties to the proceedings are the applicant and the Minister who is a nonparticipating party. It appears to the Tribunal that the issues for determination in this proceeding can be adequately determined in the absence of the parties, and the Tribunal will make a decision that is wholly in favour of the applicant. Therefore s.106(3) of the Administrative Review Tribunal Act 2024 applies, and the Tribunal has decided it will make its decision in the proceeding without holding a hearing, pursuant to s.106(1) of the Administrative Review Tribunal Act 2024.
The applicant was represented in relation to the review.
The following are the written reasons that the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
SPOUSE/DE FACTO (cl 820.211(2)(a), cl 820.221)
Whether the parties are in a spouse or de facto relationship
Clause 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. Based on the sponsor’s Victorian birth certificate, the Tribunal is satisfied the sponsor is an Australian citizen by birth. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen.
Are the parties in a de facto relationship?
'De facto partner' is defined in s.5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).
In forming an opinion whether they are in a de facto relationship consideration must be given 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 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
Assessment of the evidence
The Tribunal finds the decision of the Department was not erroneous, and that the applicant had not provided sufficient evidence or information in support of the application for the visa. The information provided to the Department included the application form, the sponsorship form, a statement by the applicant about the relationship, two statutory declarations, one from a friend of the applicant and one from the sponsor’s daughter, two copies of money transfers from the sponsor to the applicant, two photos, a relationship certificate registered 9 January 2024 and identification documents and police certificates.
The Tribunal in its assessment of the evidence has applied the principles espoused in Bretag v MILGEA [1991] FCA 582, and considered the subsequent history of the relationship in making findings as to the existence or nonexistence of facts at the time of application.
The Tribunal has considered the information provided to the Tribunal, some of which had previously been provided to the Department including the relationship certificate registered 9 January 2024. The further information included a detailed letter from the sponsor dated 23 April 2025, submissions from the applicant’s representative, a copy of the Department’s decision record and submissions addressing the issues in that decision record, a joint statement from the applicant and the sponsor dated 28 June 2025, a statement from a couple who are friends and neighbours of the applicant and the sponsor dated 25 June 2025, a second statement from a couple who are members of the same community as the applicant and the sponsor (undated), a statement from the landlord of the property rented by the applicant and the sponsor dated 23 June 2025, a statement from the sponsor’s daughter Kristine (undated), a statement from the sponsor’s daughter Josephine dated 29 June 2025, financial documents including the sponsor’s bank statements, current tenancy agreement, and a collection of photos of the applicant and sponsor, and of the applicant and sponsor with family members and friends.
The Tribunal assessed the statements provided as being detailed and providing insights into the relationship between the applicant and the sponsor, and the support for the relationship between the applicant and the sponsor from family members, community members, friends and neighbours. The Tribunal accepts that the joint statement from the applicant and sponsor, and the statement from the sponsor disclosed a commitment between the couple.
The Tribunal assesses the evidence before it outweighs any concern about the limited evidence previously provided to the Department and the age difference between the applicant and the sponsor.
Assessment of the circumstances pursuant to reg. 1.09A(3)
Financial aspects of the relationship: – the Tribunal is satisfied that the applicant and the sponsor do not jointly own real estate or other major assets. The Tribunal is satisfied that the applicant and sponsor do not have joint liabilities, and that the sponsor is responsible for the payment of the rent and utilities for the household. The Tribunal is satisfied there is no evidence that the parties pool their financial resources particularly in relation to any major financial commitments. The Tribunal is satisfied that one person in the relationship does not owe any legal obligation respect of the other. The Tribunal is satisfied that the basis on which the parties share their day-to-day household expenses is the payment of those expenses out of the bank account operated by the sponsor.
The evidence of the financial aspects of the relationship is limited, and is insufficient to indicate that the relationship between the applicant and the sponsor meets any of the requirements for a de facto relationship in s.5CB(2) of the Act, either at the time of application or subsequently.
Nature of the household: – the Tribunal is satisfied that the applicant and the sponsor share partial and joint responsibility for the care and support of the sponsor’s adult daughters and a step granddaughter, including Josephine visiting for weekends, including looking after the pets of Kristine when she goes away with her family, and spending time with their step granddaughter. The Tribunal is satisfied that the applicant and the sponsor live together as a couple in their rented accommodation. The Tribunal is satisfied that the applicant and the sponsor share responsibilities for the household tasks including cleaning and cooking around the home, and that the applicant maintains a garden of vegetables and flowers of which she is very proud.
The evidence of the nature of the household indicates that the applicant and sponsor are in a genuine and continuing relationship, and live together, and not separately and apart on a permanent basis, at both the time of application and at the time of decision.
Social aspects of the relationship: – the Tribunal is satisfied that the applicant and sponsor represent themselves to other people as being in a de facto relationship with each other. The Tribunal is satisfied that the opinion of the persons’ friends and acquaintances about their relationship is that they are deeply committed to each other, reliant on each other and have brought a sense of happiness, respect and fulfilment to each other. The Tribunal is satisfied that the parties plan and undertake their joint social activities around their health, their family, their involvement with the Filipino community and their domestic time spent together.
The evidence of the social aspects of the relationship indicates that the applicant and the sponsor are in a genuine and continuing relationship, and have a mutual commitment to a shared life to the exclusion of all others, both at the time of application and at the time of decision.
The nature of the persons’ commitment to each other: – the Tribunal is satisfied that the duration of the de facto relationship is over two years, and commenced in May 2023. The Tribunal is further satisfied that the parties have lived together since May 2023. At the time of application on 23 October 2023, the duration of the de facto relationship was five months, and the parties had lived together for five months. At the time of this decision, the duration of the de facto relationship is just over two years and the parties have lived together for over two years. The Tribunal is satisfied based on the written evidence before it that the parties draw and provide a high degree of companionship and emotional support from and to each other. The Tribunal is also satisfied that both the applicant and sponsor see their relationship as a long-term one.
The evidence of the nature of the person’s commitment to each other indicates that the applicant and the sponsor are in a genuine and continuing relationship, have a mutual commitment to a shared life to the exclusion of all others, and live together, and not separately and apart on a permanent basis, at both the time of application and at the time of this decision.
Conclusion: – the Tribunal has considered the circumstances of the relationship based on the matters set out in reg 1.109A(3). The Tribunal is satisfied that at the time of application and at the time of decision, the applicant and the sponsor had a mutual commitment to a shared life to the exclusion of all others, their relationship is genuine and continuing, and they live together, and not separately and apart on a permanent basis. The Tribunal is satisfied that at the time of application and at the time of decision, the applicant is the de facto partner of the sponsoring partner, within the meaning of s.5CB(2)(a), (b) and (c).
Not related by family: – the Tribunal has considered the Victorian birth certificate of the sponsor, and the Filipino certificate of live birth of the applicant. The two certificates record the place of birth and the parents of the applicant and the sponsor. The Tribunal is satisfied that the applicant and the sponsor are not related by family. The Tribunal is satisfied that the applicant is the de facto partner of the sponsor within the meaning of s.5CB(2)(d) of the Act.
Conclusion on the de facto relationship:- For the above reasons, the Tribunal is satisfied that the applicant is the de facto partner of the sponsor at the time of application and at the time of decision. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time the visa application was made and at the time of this decision.
Time of application requirements
As stated above the Tribunal is satisfied that at the time of application the applicant is the de facto partner of the sponsor within the meaning of s.5CB(2) of the Act. The Tribunal is satisfied that at the time of application the applicant is the de facto partner of a person who is an Australian citizen. Accordingly the Tribunal is satisfied that the applicant meets the requirements of cl.820.211(2)(a).
The Tribunal has considered the sponsorship form lodged online on 23 October 2023. The Tribunal has also considered subsequent statements from the sponsor. The Tribunal is satisfied based on the identity documents provided, that the sponsor is aged over 18 at the time of application. Accordingly the Tribunal is satisfied that the applicant is sponsored by her de facto partner who has turned 18, and the applicant meets the requirements of cl.820.211(2)(c).
The Tribunal is satisfied based on the Department movement records that are consistent with information provided in statements from the applicant, that at the time of application the applicant was in Australia as the holder of a visitor visa. Therefore the applicant was the holder of a substantive visa at the time of application and the requirements of cl.820.211(2)(d) do not apply.
For these reasons the Tribunal is satisfied that the applicant meets the requirements of cl.820.211(2)(a), (c) and (d), and therefore satisfies the criteria of cl.820.211(2) at the time of application.
Time of decision requirements
As stated above Tribunal is satisfied that at the time of decision the applicant is the de facto partner of the sponsor within the meaning of s.5CB(2) of the Act. The Tribunal is satisfied that the applicant continues to meet the requirements of cl.820.211(2) at the time of decision, and therefore satisfies the criteria in cl.820.221(1)(a).
Accordingly the Tribunal is satisfied the applicant meets the requirements of cl.820.221.
Are the additional criteria for a de facto relationship met?
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). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.
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.
The applicant provided the Tribunal with a relationship certificate registered on 9 January 2024. The application for the registration of the relationship was made on 10 October 2023. The registration of the relationship recorded by the certificate under the Relationship Act 2008 Victoria, confirms the relationship between the applicant and the sponsor was registered.
The applicant has provided evidence that the relationship is registered under the Relationships Act 2008 Victoria which is 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.
For this reason the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.
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) and cl.820.221 of Schedule 2 to the Regulations; and
·reg. 2.03A
Dates of hearing(s):  N/A
Representative for the Applicant:           Mr Mukesh Chand (MARN: 0962241)
ATTACHMENT - Extract from Migration Regulations 1994
1.09A     De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).