Binti Md Shash (Migration)

The Administrative Appeals Tribunal considered an application by Binti Md Shash for a Partner (Temporary) (Class UK) visa. The applicant claimed to be the de facto partner of the sponsor, an Australian citizen. The central dispute revolved around whether the applicant and sponsor were in a de facto relationship as defined by the Migration Act 1994, particularly given the sponsor remained married to his first wife under Australian law.

The Tribunal was required to determine if the applicant and sponsor met the criteria for a de facto relationship under section 5CB of the Migration Act. This involved assessing whether they had a mutual commitment to a shared life to the exclusion of all others, that the relationship was genuine and continuing, that they lived together or did not live separately and apart on a permanent basis, and that they were not related by family. The Tribunal also had to consider all circumstances of the relationship, including financial, household, social aspects, and the nature of their commitment to each other, as outlined in regulation 1.09A(3) of the Migration Regulations 1994.

The Tribunal found that while some evidence suggested financial support, cohabitation, and recognition of the relationship by friends and family, a critical element was missing: the mutual commitment to a shared life to the exclusion of all others. This was undermined by the fact that the sponsor remained married to his first wife under Australian law, and there was no evidence of a divorce under Islamic law that would be recognised in Australia. Furthermore, inconsistencies in the parties' accounts regarding the sponsor's relationship with his first wife, including evidence of them travelling overseas together, cast doubt on the exclusivity of the claimed de facto relationship.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, as the applicant did not satisfy the necessary criteria for the visa.