Barnes (Migration)

This matter concerned an application for a Subclass 309 (Partner (Provisional)) visa by the applicant, who claimed to be the de facto partner of an Australian citizen. The core dispute revolved around whether the applicant and her sponsor were genuinely in a de facto relationship as defined by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). The Tribunal was tasked with reconsidering this determinative issue, which had previously led to the refusal of an onshore partner visa application.

The legal issues before the Tribunal were whether the applicant and sponsor met the criteria for a de facto relationship under section 5CB of the Act, and whether this relationship was genuine and continuing. In assessing this, the Tribunal was required to consider all circumstances of the relationship, including the financial and social aspects, the nature of their household, and their commitment to each other, as stipulated by regulation 1.09A(3) of the Regulations.

The Tribunal's reasoning focused on the financial aspects of the relationship. While the parties provided evidence of a joint bank account and claimed to have pooled financial resources, the Tribunal placed limited weight on this evidence. It noted that the bank statements showed limited transactions, primarily cash deposits and withdrawals, and did not convincingly demonstrate a significant sharing or pooling of financial resources for household expenses, particularly given the registered de facto relationship status since March 2016.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant met certain specified criteria for the Subclass 309 visa, including clauses 309.211(2) and 309.221 of Schedule 2 to the Regulations, and regulation 2.03A.