1725319 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner). The applicant sought review of a decision concerning her eligibility for the visa, specifically whether she was the de facto partner of the sponsor at the time of application, and whether an exception to the cessation of the relationship applied due to the parties' child. The Tribunal was required to consider the definition of a de facto partner under section 5CB of the Migration Act 1958 (Cth) and the relevant criteria outlined in regulation 1.09A of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant and the sponsor were in a de facto relationship as defined by the Act at the time the visa application was lodged. This required an assessment of all the circumstances of their relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as stipulated by regulation 1.09A(3). A secondary issue arose concerning whether the applicant met the criteria for an exception under clause 820.221(3)(b)(ii) of Schedule 2 to the Regulations, which allows for the grant of a visa even if the de facto relationship has ceased, provided certain conditions relating to a child of the relationship are met.

The Tribunal considered the evidence regarding the parties' financial arrangements, household arrangements, and social interactions. While acknowledging some shared financial responsibilities and living arrangements, the Tribunal found the evidence regarding the depth of their commitment and the genuineness of the relationship to be limited. Crucially, the Tribunal noted that the applicant had notified it that the relationship had broken down. However, the Tribunal also considered the existence of a child of the relationship and the statutory imposition of parental responsibility and formal maintenance obligations.

Given these findings, the Tribunal determined that the matter should be remitted for reconsideration. The Tribunal directed that the applicant be taken to meet the criteria for the Subclass 820 (Partner) visa under clauses 820.221(3)(a), 820.221(3)(b)(ii), and 820.221(3) of Schedule 2 to the Regulations, indicating that the exception relating to the child was satisfied, and that the Minister should proceed to consider the remaining criteria for the grant of the visa.