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)…

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 Magallanes (Migration)

Details

AGLC: Magallanes (Migration) [2025] ARTA 1331
Case: [2025] ARTA 1331
Decision Date: 15 July 2025

CaseChat Overview and Summary

The case of Magallanes concerned a challenge to a decision by the Department of Home Affairs regarding the applicant’s application for a Partner (Temporary) (Class UK) visa, specifically a Subclass 820 visa. The primary issue was whether the applicant and her sponsor were in a genuine and continuing de facto relationship, as required by the Migration Regulations 1994. The Tribunal was tasked with reviewing the Department’s decision and determining whether it was correct or should be set aside and remitted for reconsideration.

The court had to consider the evidence provided to both the Department and the Tribunal, including financial, household, and social aspects of the relationship, as well as the nature of the commitment between the applicant and her sponsor. The Tribunal examined whether the Department had erred in its assessment of the evidence and whether the applicant had provided sufficient evidence to support her application for the visa. It also considered the additional evidence provided to the Tribunal, which included detailed statements and documentation that had not been available to the Department.

The Tribunal found that the Department’s decision was not erroneous and that the applicant had not provided sufficient evidence to support her visa application. However, the Tribunal assessed the additional evidence provided to it, which included detailed statements and documentation, and found that it provided insights into the relationship and support for the relationship from family, community members, friends, and neighbours. The Tribunal accepted that the joint statement from the applicant and sponsor, along with the sponsor’s statement, disclosed a commitment between the couple.

Given these findings, the Tribunal concluded that the appropriate course was to set aside the decision under review and remit the application for the visa to the Minister for reconsideration. The Tribunal found that the applicant met the criteria for a Subclass 820 visa, including the requirement that the applicant and sponsor have a genuine and continuing de facto relationship. The Tribunal’s decision was to remit the application for reconsideration in accordance with the order that the applicant meets the specified criteria for a Subclass 820 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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. 2.03ADates of hearing(s): N/A Representative for the Applicant: Mr Mukesh Chand (MARN: 0962241)ATTACHMENT - Extract from Migration Regulations 19941.09A 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).

Ratio Decidendi

Legal Principle Established

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