Cheah (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), made by the applicant who claimed to be the de facto partner of an Australian citizen sponsor. The central dispute revolved around whether the applicant and the sponsor were in a genuine and continuing de facto relationship at the time of the visa application and at the time of the decision, as required by clauses 820.211(2)(a) and 820.221 of the Migration Regulations 1994. The case was heard by David Crawshay.

The primary legal issue before the court was to determine whether the applicant and the sponsor met the definition of "de facto partner" under section 5CB of the Migration Act 1958. This definition requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, cohabitation or not living separately and apart on a permanent basis, and that the couple are not related by family. In assessing this, the court was required to consider all circumstances of the relationship, including the financial and social aspects, the nature of the household, and the commitment to each other, as detailed in regulation 1.09A(3).

The court reasoned that each specific matter outlined in regulation 1.09A(3) must be addressed when forming an opinion on whether a de facto relationship exists. The parties had provided extensive documentation, including bank statements, superannuation details, travel records, photographs, and statutory declarations from friends and family, which were considered relevant to these criteria. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant met the specified criteria for the visa.