Chiang (Migration)

This matter concerned an application by Ms Chiang for a Partner (Residence) (Class BS) visa, subclass 801. The visa was refused by the delegate on the basis that Ms Chiang was not satisfied to be the de facto spouse of Ms Wang, an Australian permanent resident and sponsor. The dispute before the court was whether Ms Chiang and Ms Wang met the legislative criteria for being de facto spouses at the time of the delegate's decision.

The court was required to determine whether the parties were in a de facto relationship as defined by section 5CB of the Migration Act 1958 (Cth). 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 making this determination, the court was obliged to consider all the circumstances of the relationship, including the financial and social aspects, the nature of the household, and the commitment to each other, as outlined in regulation 1.09A(3) of the Migration Regulations 1994.

The court reasoned that the assessment of a de facto relationship requires consideration of all the circumstances, with specific attention to the matters listed in regulation 1.09A(3). These matters encompass financial aspects such as joint ownership and pooling of resources, the nature of the household including living arrangements and shared responsibilities, social aspects including how the couple presents themselves and their joint activities, and the nature of their commitment, including duration and emotional support. The court noted that each of these specific matters are effectively questions that must be answered in forming an opinion.

Ultimately, the Tribunal remitted the application for reconsideration by the Minister. The direction was that the applicant was to be considered to meet the criteria specified in clause 801.221(2)(c) of Schedule 2 to the Regulations and regulation 2.03A.