1611532 (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, specifically a Subclass 801 visa. The central dispute before the Tribunal was whether the applicant was the de facto partner of the sponsoring partner at the time of the decision. The sponsoring partner was an Australian permanent resident and had been identified as such in the applicant's Subclass 820 visa application.

The Tribunal was required to determine if the parties 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. In making this determination, the Tribunal had to consider all circumstances of the relationship, including financial, household, social aspects, and the nature of the parties' commitment to each other, as outlined in regulation 1.09A(3) of the Migration Regulations 1994.

The Tribunal considered extensive written and oral evidence regarding the financial pooling and sharing of expenses, including mortgage payments. It also examined the nature of the household, noting the parties owned a home together, shared a pet, and divided housework based on skills. Social aspects were assessed through evidence of the parties representing themselves as being in a de facto relationship since 2011, the positive opinions of friends and acquaintances, and joint visits to both families, supported by photographic evidence. The Tribunal also considered the duration of the relationship and the companionship and emotional support provided.

The Tribunal concluded that the matter should be remitted for reconsideration. It directed that the applicant met the criteria for a Subclass 801 visa under clause 801.221 of Schedule 2 and regulation 2.03A of the Migration Regulations 1994.