Agostin (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), made by an applicant who claimed to be the de facto partner of an Australian citizen. The primary dispute revolved around whether the parties met the 12-month cohabitation requirement for a de facto relationship as stipulated by the Migration Regulations 1994. The decision was made by Carmel Morfuni.

The legal issues before the Tribunal were whether the applicant met the definition of a de facto partner under Section 5CB of the Migration Act 1958 and the relevant regulations, specifically whether the parties were in a genuine and continuing de facto relationship that met the required duration at the time of application and decision. The Tribunal was required to consider all circumstances of the relationship, including financial, household, social aspects, and the nature of the commitment between the parties, as outlined in Regulation 1.09A(3).

The Tribunal found that while the parties had demonstrated a mutual commitment to a shared life, lived together, and had a dependent child, their relationship fell short by approximately two months of the 12-month cohabitation requirement. However, the Tribunal considered the dependent child of the relationship to be a compelling and compassionate circumstance that warranted further consideration. Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met certain criteria for the Subclass 820 visa, implying that the shortfall in the de facto relationship duration should be assessed in light of the compelling circumstances.