Castillo (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), by Ms Cynthia Abello Castillo. The central dispute was whether Ms Castillo was in a genuine de facto relationship with her sponsor, Mr Stephen John Dalton, at the time of her visa application on 22 April 2019, as required by the Migration Regulations 1994. The Tribunal was asked to determine if the parties met the criteria for a de facto relationship under the Act and Regulations.

The legal issues before the Tribunal were whether Ms Castillo and Mr Dalton were in a genuine de facto relationship as at 22 April 2019, and whether this relationship had existed for at least 12 months prior to that date, as mandated by clause 820.211(2) and regulation 2.03A of the Regulations. The definition of a de facto relationship under section 5CB of the Act, which requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, cohabitation, and no familial relation, was central to the determination.

The Tribunal considered that while Ms Castillo and Mr Dalton were validly married at the time of the Tribunal's decision, the crucial period for assessing the de facto relationship was the 12 months preceding the visa application. The Tribunal noted that the assessment of a de facto relationship requires consideration of all circumstances, including financial, household, social aspects, and the nature of the commitment to each other, as outlined in regulation 1.09A(3). The Tribunal found that both parties were divorcees seeking a life partner and had met online in December 2017, subsequently communicating exclusively via Skype and Facebook Messenger.

Given the findings, the Tribunal remitted the application for reconsideration by the Minister, with a direction that Ms Castillo met the criteria for a Subclass 820 (Partner) visa concerning clauses 820.211(2)(a) and 820.221(1)(a) of Schedule 2, and regulation 2.03A.