1513941 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa by a British woman sponsored by an Australian man. The central dispute revolved around whether the parties were in a genuine and continuing de facto relationship for at least 12 months prior to the visa application, or if compelling and compassionate circumstances existed to grant the visa. The Tribunal was tasked with determining the validity of the de facto relationship claim.

The legal issues before the Tribunal were twofold. Firstly, whether the applicant and the sponsor were in a de facto relationship as defined by section 5CB of the Migration Act 1958 (Cth) and Regulation 1.09A of the Migration Regulations 1994, requiring a mutual commitment to a shared life, a genuine and continuing relationship, cohabitation, and no familial relation. Secondly, if the 12-month requirement for the de facto relationship was not met, whether there were compelling and compassionate circumstances justifying the grant of the visa.

The Tribunal considered the definition of a de facto relationship under section 5CB of the Act, which mandates consideration of all circumstances, including financial and social aspects, the nature of the household, and the commitment to each other, as further elaborated in Regulation 1.09A(3). This includes examining joint ownership of assets, liabilities, pooling of financial resources, legal obligations, sharing of household expenses, living arrangements, and social representations of the relationship. The Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant met the criteria for a Subclass 820 (Partner (Temporary)) visa, specifically clauses 820.211 and 820.221 of Schedule 2, and regulation 2.03A.