1510614 (Migration)

The Administrative Appeals Tribunal considered whether the applicant continued to be the de facto partner of the sponsoring partner at the time of the decision. The applicant sought a Partner (Temporary) (Class UK) visa and was required to meet the criteria in clause 820.211(2) of the Migration Regulations 1994 at both the time of application and the time of the decision. The applicant did not claim to meet any alternative criteria.

The central legal issue was whether the applicant satisfied the definition of a "de facto partner" as defined in section 5CB of the Migration Act 1958. This definition requires a mutual commitment to a shared life to the exclusion of all 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 specifically had to determine if these criteria were met at the time of the decision.

The Tribunal reasoned that the applicant had advised that his relationship with the sponsoring partner ended in 2013. Consequently, the parties no longer shared a mutual commitment to a shared life to the exclusion of all others, their relationship was not continuing, and they were living separately and apart on a permanent basis. The sponsor was no longer in a continuing relationship with the applicant or sponsoring him. Based on this, the Tribunal was not satisfied that the requirements of section 5CB(2) were met at the time of the decision, meaning the applicant did not satisfy clause 820.221(1). As there was no evidence to suggest the applicant met any alternative criteria, the Tribunal affirmed the decision not to grant the visa.