1817126 (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820. The applicant sought the visa on the basis of a same-sex de facto relationship with her sponsor, which had since ceased. The dispute before the Tribunal was whether the parties had been in a de facto relationship as defined by the Migration Act 1994 and the Migration Regulations 1994, and whether the applicant met the criteria for the visa, particularly in light of claims of family violence. The decision was made by Cathrine Burnett-Wake, Member.

The primary legal issue before the Tribunal was to determine if the applicant and her sponsor were in a de facto relationship, considering all the circumstances as required by section 5CB of the Act and regulation 1.09A of the Regulations. This involved assessing various aspects of the relationship, including financial and social elements, the nature of their household, and their commitment to each other. A further issue was whether the applicant's claims of family violence impacted her ability to provide evidence of the relationship and whether this circumstance, coupled with the cessation of the relationship, satisfied the relevant visa criteria.

The Tribunal reasoned that a de facto relationship requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, cohabitation (or not living apart permanently), and that the couple are not related by family. In assessing these requirements, the Tribunal considered the specific matters outlined in regulation 1.09A(3), which include financial aspects, the nature of the household, social aspects, and the nature of the commitment to each other. The Tribunal noted that the applicant’s relationship was registered under Victorian law, which exempted it from the usual 12-month relationship length requirement. Crucially, the Tribunal accepted that the applicant had experienced family violence, which limited her ability to gather documentary evidence of the relationship and contributed to its breakdown. Given the cessation of the relationship and the finding of family violence, the Tribunal concluded that the applicant met the requirements of clauses 820.211 and 820.221(3) of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa for reconsideration. The remittal was accompanied by a direction that the applicant be considered to meet the specified criteria for a Subclass 820 visa, allowing the Minister to consider the remaining criteria for the visa.