1721662 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner). The applicant sought to establish that they were in a de facto relationship with the sponsor, who was an Australian permanent resident. The core of the dispute revolved around whether the parties met the criteria for a genuine de facto relationship at the time of the visa application, particularly in light of their subsequent marriage.

The Tribunal was required to determine whether the applicant was the spouse or de facto partner of the sponsor, as defined by sections 5F and 5CB of the Migration Act 1994, respectively. This involved assessing whether the parties had a mutual commitment to a shared life to the exclusion of others, whether their relationship was genuine and continuing, whether they lived together or did not live separately and apart on a permanent basis, and whether they were not related by family. The Tribunal also had to consider the specific matters outlined in regulation 1.09A(3) of the Migration Regulations 1994, which include the financial and social aspects of the relationship, the nature of the household, and the parties' commitment to each other.

The Tribunal noted that the parties were married after the visa application was lodged, which meant they could potentially meet the criteria for a spousal relationship at the time of the decision, but not necessarily a de facto relationship at the time of application. The Tribunal considered the evidence presented regarding the parties' financial arrangements, including the pooling of funds for household expenses, and their living arrangements. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant met the criteria for the Subclass 820 visa, implying that further assessment of the de facto relationship criteria was necessary.