1511143 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa by a 27-year-old Burmese woman, who had been in Australia on various student visas before being granted a subclass 485 visa. The applicant sought to establish a de facto relationship with her sponsor, a 30-year-old Irish national who held Australian permanent residency. The dispute centred on whether the parties had commenced a de facto relationship and whether that relationship was ongoing at the time of the visa application and the decision.

The primary legal issue before the Tribunal was to determine whether the applicant and her sponsor were in a de facto relationship, as defined by section 5CB of the Migration Act 1958 (Cth). 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. A further issue arose if the Tribunal found the parties had not been in a de facto relationship for at least 12 months prior to the application, namely whether compelling and compassionate circumstances existed for granting the visa despite the applicant not meeting regulation 2.03A.

The Tribunal considered all circumstances of the relationship, including financial aspects, the nature of the household, social aspects, and the parties' commitment to each other, as outlined in regulation 1.09A(3) of the Migration Regulations 1994. This involved examining evidence of joint accounts, pooling of financial resources, sharing of household expenses, living arrangements, representation to others, the opinions of friends and acquaintances, joint social activities, duration of the relationship, and the degree of companionship and emotional support. The Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa to the Minister with a direction that the applicant meets the criteria for a Subclass 820 (Partner (Temporary)) visa, specifically clauses 820.211 and 820.221 of Schedule 2 to the Regulations, and regulation 2.03A.