1703652 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an Indonesian national. The applicant's sponsor was a national of [Country 1] and a permanent resident of Australia. The core of the dispute revolved around whether the applicant and sponsor were in a genuine and continuing de facto relationship at the time of the visa application, and a genuine spousal relationship at the time of the decision. A further issue was whether the applicant met the Schedule 3 criteria, which applied due to the application being lodged outside the prescribed timeframe after her last substantive visa ceased. The Administrative Appeals Tribunal (AAT) considered the evidence and submissions presented.

The Tribunal was required to determine three key issues. Firstly, whether the applicant and her sponsor were in a genuine spousal or de facto relationship at the time of the visa application and at the time of the Tribunal's decision. Secondly, whether the applicant held a substantive visa at the time of her application, or had applied within 28 days of her last substantive visa ceasing. If not, the third issue was whether there were compelling reasons not to apply the Schedule 3 requirements.

The Tribunal found that the applicant and sponsor had a mutual commitment to a shared life to the exclusion of others, and that their relationship was genuine and continuing at the time of the application. This conclusion was based on a comprehensive review of extensive documentary evidence, including financial records, witness statements, photographs, and correspondence, as well as the oral evidence provided by the applicant and sponsor. The Tribunal noted that while the parties did not own real estate or have joint liabilities, they did have a joint bank account, shared regular expenses, and lived together. The Tribunal also considered the social aspects of the relationship, including how they represented themselves to friends and family, and their joint social activities. The Tribunal was satisfied that the parties saw their relationship as stable, mutually supportive, and long-term, and that their commitment to each other provided significant weight in support of a finding of a genuine and continuing relationship. The Tribunal also found that the applicant had not lived separately and apart from the sponsor on a permanent basis since committing to their relationship.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant met the relevant criteria for the Subclass 820 visa, including those relating to the genuineness of the relationship and the application of Schedule 3 requirements.