1505527 (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Residence) (Class BS) visa. The applicant claimed to be the de facto partner of the sponsor, an Australian citizen, who was identified as the sponsoring partner in the visa application. The core dispute was whether the applicant and the sponsor were in a de facto relationship at the time of the decision.

The Tribunal was required to determine if the applicant met the criteria for a Partner (Residence) visa, specifically whether they were the de facto partner of the sponsor as required by cl.801.221(2)(c) of the Migration Regulations 1994. This involved assessing whether the parties were in a de facto relationship as defined by s.5CB of the Migration Act 1958, which requires a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, cohabitation or not living separately and apart on a permanent basis, and that the couple are not related by family.

The Tribunal found that at the hearing, the visa applicant stated that she and the sponsor were no longer in a relationship. Consequently, the Tribunal concluded that the parties did not have a mutual commitment to a shared life, were not in a genuine and continuing relationship, and did not live together or not separately and apart on a permanent basis. Based on this, the Tribunal was not satisfied that the requirements of s.5CB(2) were met at the time of the decision. As the applicant did not satisfy the primary criteria and had not claimed to meet any alternative criteria, the Tribunal affirmed the decision not to grant the visa.