Allcock (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant claimed to be the de facto partner of an Australian citizen. The primary issue before the Tribunal was whether the parties were in a genuine and continuing de facto relationship at the time the visa application was made, as required by clauses 309.211(2) and 309.221 of the Migration Regulations 1994. The Tribunal also considered evidence of events subsequent to the application date, deeming it appropriate to make findings about the criterion at clause 309.221, which relates to the time of decision.

The legal issues the Tribunal was required to determine were whether the parties met the definition of "de facto partner" under section 5CB of the Migration Act 1958. This definition requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, cohabitation (or not living separately and apart on a permanent basis), and that the couple are not related by family. In assessing these elements, the Tribunal was directed to consider all circumstances of the relationship, including the financial and social aspects, the nature of the household, and the commitment to each other, as detailed in regulation 1.09A(3).

The Tribunal's reasoning focused on the evidence presented regarding the parties' interactions since meeting in 2012. This included periods of cohabitation in Australia and Dominica, financial support provided by the review applicant to the visa applicant, introductions to family members, and travel together. The Tribunal noted that while the parties had not lived together continuously for the 12 months typically required for a de facto relationship, the specific circumstances of their relationship, including the nature of their commitment and the evidence of their shared life, were to be considered holistically. The Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration, with a direction that the visa applicant met the criteria specified in cl 309.211, cl 309.221, and r 2.03A of the Migration Regulations 1994.