Bateman (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), by an applicant who is a national of the United Kingdom. The applicant sought to establish a genuine de facto relationship with his sponsor, an Australian citizen. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant and his sponsor were in a genuine de facto relationship at the time of the visa application and at the time of the Tribunal's decision.

The Tribunal was required to consider the definition of a de facto relationship under s 5CB of the Migration Act 1958 (Cth), which requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, cohabitation, and that the couple are not related by family. In assessing these criteria, the Tribunal was mandated by reg 1.09A(2) 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 noted that it had significantly more information before it than was available to the original delegate.

The Tribunal found the oral evidence of the applicant and sponsor to be consistent, credible, and corroborative of the documentary evidence. The Tribunal accepted the parties' explanation that the limited evidence provided to the Department initially was due to the parties' naivety regarding departmental expectations and the applicant's ongoing divorce proceedings, which led him to delay fully merging financial affairs to avoid potential financial risk to the sponsor. Given the Tribunal's satisfaction with the credibility of the witnesses and the availability of comprehensive evidence, the Tribunal remitted the application for reconsideration. The Tribunal directed that the applicant met the criteria for the visa, including clauses 820.211 and 820.221 of Schedule 2 to the Regulations and regulation 2.03A.