Brown (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, by Miss Brown, who sought to establish a de facto relationship with Ms Graham, an Australian citizen. The Tribunal was required to determine whether Miss Brown met the criteria for the visa, specifically whether she was the de facto partner of Ms Graham at the time of application and at the time of the decision.

The central legal issue before the Tribunal was whether Miss Brown and Ms Graham were in a de facto relationship as defined by the Migration Act 1958 (Cth) and the Migration Regulations 1994. This required an assessment of all the circumstances of their relationship, including the financial aspects, the nature of their household, the social aspects, and the nature of their commitment to each other, as outlined in regulation 1.09A(3). The Tribunal noted that while the parties had married in a foreign consulate, this marriage was not recognised under Australian law due to prohibitions on same-sex unions at the time.

The Tribunal's reasoning focused on the factors set out in regulation 1.09A(3). It considered evidence presented by Miss Brown, including joint bank accounts, joint rental agreements, and joint ownership of assets, which addressed the financial aspects. Evidence regarding the birth of a child and shared responsibility for childcare and housework was considered in relation to the nature of the household. Social recognition of the relationship was evidenced by statutory declarations from friends and acquaintances and social media profiles. The parties' commitment was demonstrated through medical records related to their efforts to have a child and photographs of them together, including at their marriage ceremony.

Ultimately, the Tribunal concluded that the application should be remitted for reconsideration by the Minister. The Tribunal directed that the applicant met the criteria for the Subclass 820 visa concerning the de facto relationship, but the remaining criteria for the visa were to be considered further.