1820202 (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Residence) (Class BS) visa, Subclass 801. The applicant sought review of a decision that found they were not the de facto partner of an Australian citizen, who was the sponsoring partner.

The central legal issue before the Tribunal was whether the applicant and the sponsor were in a de facto relationship for the purposes of the Migration Act 1958 (Cth). This required the Tribunal to determine if they had a mutual commitment to a shared life to the exclusion of all others, if their relationship was genuine and continuing, if they lived together or did not live separately and apart on a permanent basis, and if they were not related by family, as defined by section 5CB of the Act. The Tribunal also had to consider the financial, household, and social aspects of their relationship, and the nature of their commitment to each other, as outlined in regulation 1.09A(3).

The Tribunal noted that the Department had initially been unsatisfied due to a lack of evidence regarding the financial, household, and social aspects of the relationship, and the parties' commitment to each other. However, since the Department's decision, the applicant and sponsor had provided further documentation, including evidence of shared financial responsibility for a rental property and access to a joint bank account. They had also notified Australian government agencies of their relationship. Crucially, at the hearing, the parties provided consistent oral evidence about their relationship history, living arrangements, socialising, and commitment. The Tribunal found their demonstrated personal knowledge of each other, such as the sponsor's ability to recall the applicant's deceased pet's name, to be indicative of a genuine relationship. While no documentation of a registered relationship was provided, the Tribunal considered this in light of the parties appearing "simplistic and naïve."

The Tribunal concluded that the evidence, particularly the consistent oral evidence provided at the hearing and the additional documentation, satisfied the requirements of a de facto relationship. Accordingly, the Tribunal remitted the matter for reconsideration.