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[2018] AATA 3604
appellant. The Tribunal remitted the visa application to the Minister with directions that the applicant met cl 820.211(2), cl 820.221(1) and r 2.03A; the Minister was to consider the remaining criteria.
The Tribunal accepted that the couple remained in a genuine, continuing relationship even though they had separate homes when the review was decided. Their finances were mostly separate and they were no longer sharing household tasks, but evidence of their social life, commitment, communication and efforts to find a home together was persuasive. Their Victorian relationship registration meant the ordinary 12-month relationship period did not apply. The Tribunal did not grant the visa itself: it sent the application back to the Minister and directed that specified criteria had been met.
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The decision concerns Mr Abraham Saavedra Herrera’s review application after a delegate refused his Partner (Temporary) (Class UK) visa application. The application was made on 2 March 2015, relying on his relationship with Ms Alexandra Kimpton, an Australian citizen. The delegate refused the application on 24 November 2016 because they were not satisfied that there was enough evidence that Mr Herrera was Ms Kimpton’s spouse or de facto partner ([paras 1–4, “Application for Review”]).
1 cited instrument linked from this judgment.
The Tribunal hearing took place on 26 July 2018. Mr Herrera and Ms Kimpton both gave oral evidence. After the hearing, the Tribunal invited further information about finances, living arrangements and social aspects of the relationship. The couple then provided declarations from themselves and friends, applications for joint rental accommodation, and statements for a joint bank account ([paras 5–7, “Application for Review”]).
The couple’s account was that they met in December 2013, began living together in July 2014, and shared accommodation in Richmond until July 2017. Mr Herrera then moved out because he did not want to continue living in Richmond or sharing the house with other tenants. Both partners said this did not end their relationship. At the time of the decision they lived at different addresses, but had jointly applied for rental properties and intended to live together again ([“Inception and development of the relationship”, paras 1–2; “Nature of the persons’ commitment”, paras 2–3]).
The Tribunal remitted the application rather than granting the visa. It directed that Mr Herrera met cl 820.211(2), cl 820.221(1) and r 2.03A, leaving the Minister to consider the remaining Subclass 820 criteria ([“Decision”, para 1; “Are the additional criteria for a de facto relationship met?”, para 5]).
The decision-maker was the Administrative Appeals Tribunal’s Migration and Refugee Division, not a court. Its central question was whether Mr Herrera was Ms Kimpton’s de facto partner within s 5CB of the Migration Act 1958 at both the time of the application and the time of the Tribunal’s decision.
The Tribunal set out the statutory elements: mutual commitment to a shared life to the exclusion of all others; a genuine and continuing relationship; living together or not living separately and apart on a permanent basis; and not being related by family ([“Are the parties in a de facto relationship?”, para 1]). It also said it had to assess all the circumstances, including the financial, household, social and commitment matters described in r 1.09A ([ibid, paras 2–3]).
The assessment was not a simple tally of factors. The Tribunal assigned different weight to different evidence. Financially, the parties had a joint bank account, regularly used for transfers and some shared social expenses. But they kept separate accounts for their salaries, had not significantly pooled resources for major commitments, and had no evidence of joint major assets, joint liabilities or legal obligations between them. The Tribunal gave the financial evidence “some positive weight”, while noting the absence of other financial evidence ([“The financial aspects of the relationship”, paras 2–5]).
The household evidence also had limits. The parties said that when living together they shared housework, shopping and cooking, cared for the garden, and that Mr Herrera did some maintenance. But at the time of the decision they lived separately and were not sharing those tasks. The Tribunal gave the household factor “limited positive weight” ([“The nature of the household”, paras 1–3]). The absence of evidence of children was also noted.
The social evidence was stronger in the Tribunal’s assessment. The parties described spending time with mutual friends and Ms Kimpton’s family, including at Christmas. They supplied friends’ statutory declarations and photographs of family outings, meals and holidays. The Tribunal considered the photographs genuine and accepted that friends and acquaintances regarded the couple as being in a genuine and continuing relationship. It gave the social aspects “significant weight” ([“The social aspects of the relationship”, paras 1–5]).
The Tribunal also accepted evidence of commitment. The parties said they were not romantically involved with anyone else, remained committed despite living apart, and had made joint applications for rental properties. The Tribunal treated those applications as evidence of an intention to resume living together and establish a joint household. It accepted the parties’ evidence that their relationship had continued and strengthened, and that they had taken steps to address living apart ([“The nature of the persons’ commitment to each other”, paras 2–7]).
Taken together, the evidence persuaded the Tribunal that the relationship remained genuine and continuing and that the separate residences were not a permanent separation. It found that the parties met s 5CB(2) at application and decision, and were not related by family ([ibid, paras 8–10]).
The decision identifies the relevant statutory framework rather than announcing a new legal test. Before the Tribunal’s decision, the applicable provisions included s 5CB of the Migration Act, r 1.09A and r 2.03A of the Migration Regulations, and the relevant Subclass 820 criteria in Schedule 2. The Tribunal applied those provisions to the couple’s evidence.
The stated approach under s 5CB(2) was to examine the statutory conditions for a de facto relationship. Regulation 1.09A required consideration of all the circumstances, including financial arrangements, the nature of the household, social presentation and commitment. The decision records that the Tribunal applied principles from Bretag v MILGEA [1991] FCA 582 when deciding whether the relationship was genuine and continuing, but does not set out those principles in detail ([“Are the parties in a de facto relationship?”, paras 2–3]).
The additional criterion in r 2.03A ordinarily required the de facto relationship to have existed for at least the 12 months immediately before the visa application. The decision also describes exceptions, including where the relationship was registered under a relevant State or Territory law. The Tribunal accepted that the couple had registered their relationship under Victorian law and that their certificate met the relevant registration requirement, so it found the 12-month requirement did not apply ([“Are the additional criteria for a de facto relationship met?”, paras 2–4]).
After the decision, the Tribunal’s directions established that the applicant met the particular criteria it considered: cl 820.211(2), cl 820.221(1) and r 2.03A. It did not determine whether every other Subclass 820 criterion was met. The decision therefore does not establish that the visa was ultimately granted, and the supplied text does not show any change to the statutory framework or describe later developments in the law.
The Tribunal said: “consideration must be given to all of the circumstances of the relationship” ([“Are the parties in a de facto relationship?”, para 2]). In plain English, the decision was based on the relationship as a whole, not one document or one aspect such as shared finances.
On finances, the Tribunal found “the parties have not pooled their financial resources to any significant extend or in relation to major financial commitments” ([“The financial aspects of the relationship”, para 4]). Despite that limitation, the joint account counted positively, but only to some extent. The decision illustrates that a lack of extensive financial pooling was relevant evidence, not an automatic answer to the statutory question.
On household arrangements, the Tribunal gave “limited positive weight” because the couple were no longer living together or sharing domestic tasks ([“The nature of the household”, para 3]). Their prior shared household mattered, but the Tribunal also considered their circumstances at the time of decision.
The Tribunal gave “significant weight” to the social aspects of the relationship ([“The social aspects of the relationship”, para 5]). It accepted declarations and photographs, and found that the couple regularly socialised together and were accepted by friends and acquaintances as a genuine couple.
On commitment, the Tribunal accepted that, although the partners lived apart, their relationship continued and they had taken steps to live together again ([“The nature of the persons’ commitment to each other”, para 6]). It then found that they were “not living separately or apart on a permanent basis” ([ibid, para 8]). In context, that conclusion rested on the evidence accepted in this particular review, including joint rental applications and continued socialising, rather than on separate residences being irrelevant in every case.
Finally, the Tribunal remitted the application with directions about specified criteria. In plain English, it resolved the issues it considered but left the remaining visa requirements for the Minister.
As a Tribunal decision, it is most usefully read as an example of how the specified statutory factors were assessed on these facts, rather than as a binding rule for all partner visa applications. It may be relevant to cases where a couple have lived together in the past but are living separately when their application or review is assessed, and where they say the separation is temporary rather than the end of the relationship.
The fact pattern involved a relationship that had lasted for several years, a period of cohabitation, and a later move to separate homes. The parties gave explanations for the move and supplied evidence of continuing commitment and plans to resume cohabitation. In this matter, joint applications for rental housing were treated as supporting an intention to establish a shared household again.
It may also be relevant where the evidence across the r 1.09A categories is uneven. Here, financial pooling and current household sharing were limited, while social evidence and commitment evidence were stronger. The Tribunal assessed each category and then considered the circumstances together.
A further relevant feature is registration of the relationship under State law. The decision addresses the effect of the Victorian certificate on the 12-month criterion in r 2.03A. It does not, however, say that registration by itself proves every element of s 5CB, or that it resolves the other visa criteria.
The supplied decision contains no discussion of later cases or subsequent judicial treatment of Saavedra Herrera. It therefore does not provide a basis to say whether a later court or tribunal followed, distinguished, or otherwise treated this decision.
The decision itself refers to Bretag v MILGEA [1991] FCA 582 and says the Tribunal applied principles from that case when considering whether the relationship was genuine and continuing ([“Are the parties in a de facto relationship?”, para 3]). The supplied text does not give the relevant passage from Bretag or explain its reasoning in detail. No further precedent relationship can safely be identified from this material.
For research purposes, the decision’s outcome should be distinguished from later treatment of its reasoning. The text establishes what this Tribunal found on the record before it and what criteria it directed were satisfied. It does not establish the decision’s binding status or its treatment in later authorities.
The decision remitted the application for the Minister to consider the remaining Subclass 820 criteria. The supplied text does not identify those outstanding criteria or state the eventual outcome of the visa application. That is an important limit when describing the result: the applicant succeeded on the criteria specified in the directions, but the Tribunal did not itself grant the visa.
The decision does not provide detailed findings about every practical aspect of the couple’s arrangements while living apart, such as the frequency of visits or how they divided day-to-day expenses at that time. It records that the Tribunal accepted continued communication, socialising and commitment, but does not reproduce the underlying text messages or give a comprehensive account of those matters.
Nor does the decision explain the Bretag principles it applied beyond identifying the case. A reader wanting to understand that authority’s precise contribution would need the source judgment itself. The decision also does not address how the same evidence might be assessed in a different factual setting, or how later amendments or later decisions might affect the analysis.
The central unresolved practical point in this matter is what happened after remittal. The decision says the Minister was to consider the remaining criteria, but the provided text contains no later departmental decision. Any account of the ultimate visa outcome would therefore go beyond the available source.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Saavedra Herrera (Migration) [2018] AATA 3604 (21 August 2018)
DECISION: The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:
Migration - Partner (Temporary) (Class UK) visa - Subclass 820 (Partner (Temporary)) - Whether the parties are in a genuine de facto relationship - Moderate financial pooling - Limited evidence of joint household responsibilities - Parties not currently cohabitating - Parties actively seeking joint residence - Relationship represented to others - Relationship viewed as continuous and ongoing by the parties - Decision remitted with direction
Migration Act 1958 (Cth), ss 5CB, 65, 359(2)
Migration Regulations 1994 (Cth), r 2.03A, Schedule 2, cls 820.211, 820.221
Bretag v MILGEA [1991] FCA 582
Whether the parties are in a spouse or de facto relationship
The nature of the persons' commitment to each other
Are the additional criteria for a de facto relationship met?
**ATTACHMENT - Extract from Migration Regulations 1994
(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:
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; 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
(i) any joint responsibility for the care and support of children; 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:
(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).
The Tribunal remitted the visa application to the Minister with directions that the applicant met cl 820.211(2), cl 820.221(1) and r 2.03A; the Minister was to consider the remaining criteria.