1714359 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an applicant who claimed her relationship with the sponsor had ceased and that she had been a victim of family violence. The Tribunal was required to consider whether the applicant met the criteria for the visa, particularly in light of the cessation of the relationship and the family violence claim.

The primary legal issues before the Tribunal were whether the applicant was the de facto partner of the sponsor at the time of the visa application, and whether the applicant had suffered family violence. The definition of a de facto relationship under section 5CB of the Migration Act 1958 (Cth) required a mutual commitment to a shared life, a genuine and continuing relationship, cohabitation, and that the couple were not related by family. The assessment of a de facto relationship involved considering all circumstances, including financial and social aspects, the nature of the household, and the commitment to each other, as outlined in regulation 1.09A(3).

The Tribunal found that the applicant met the criteria under cl.820.211(1)(a) as she was not the holder of a Subclass 771 (Transit) visa at the time of application. Crucially, the Tribunal determined that the applicant met the requirements of cl.820.221(3) due to the cessation of her relationship with the sponsor and her experience of family violence. The Tribunal noted that family violence did not need to cause or contribute to the cessation of the relationship, nor did it need to have occurred before the cessation, but it must have existed.

Consequently, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa for reconsideration by the Minister, with the direction that the applicant met the criteria under cl.820.221(3) and cl.820.211(1) of Schedule 2 to the Regulations.