ACOSTA MORA (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa by the applicant, who claimed to be in a de facto relationship with an Australian citizen sponsor. The Administrative Appeals Tribunal was required to determine whether the applicant and her sponsor were in a genuine and continuing de facto relationship at the time of the decision, as defined by section 5CB of the Migration Act 1958 (Cth). The Tribunal considered evidence presented by the applicant, including verbal testimony, written submissions, and documentary evidence, as well as information previously provided to the Department.

The central legal issue before the Tribunal was whether the applicant met the criteria for a de facto relationship under section 5CB of the Act, which requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, living together or not living separately and apart on a permanent basis, and not being related by family. In assessing this, the Tribunal was mandated by regulation 1.09A of the Migration Regulations 1994 to consider all circumstances of the relationship, including financial aspects, the nature of the household, social aspects, and the nature of the parties' commitment to each other.

The Tribunal found that while the applicant and sponsor had been in a de facto relationship until late 2016, there was insufficient evidence to establish that the relationship had genuinely rekindled in 2017. This conclusion was informed by community information suggesting the relationship had ceased and a lack of evidence demonstrating a renewed commitment or shared life. Consequently, the Tribunal affirmed the decision not to grant the visa, as the applicant failed to satisfy the essential criteria for a de facto relationship at the time of the decision.