Chiu (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), by an applicant born in Taiwan in 1986, sponsored by an Australian citizen born in 1992. The parties claimed to have met in February 2015, entered into a de facto relationship in April 2015, and had a son born in April 2016. They also registered their relationship in March 2017. The sponsor had previously sponsored a partner visa, which was granted on family violence grounds after the relationship ended. The applicant had also lodged a Partner visa application in September 2016. The decision under review was made by the Tribunal.

The primary legal issues before the Tribunal were whether the parties were in a genuine de facto relationship at the time of the visa application and at the time of the decision, and whether there were compelling circumstances affecting the sponsor that would justify a waiver of the sponsorship limitation under regulation 12.0J. The Tribunal was required to consider the definition of a de facto relationship under section 5CB of the Migration Act 1958 (Cth) and the matters outlined in regulation 1.09A of the Migration Regulations 1994, which include financial aspects, the nature of the household, social aspects, and the nature of the commitment to each other.

The Tribunal found the applicant and sponsor, along with the sponsor's father who acted as a witness, to be credible. It accepted their testimony and the documentary evidence provided, which included statutory declarations, photographs, bank statements, and tenancy agreements. The Tribunal noted that the applicant had overlooked a request for further evidence due to being preoccupied with the recent birth of her son. The Tribunal concluded that the parties met the criteria for a de facto relationship under clause 820.211 and 820.221 of Schedule 2 to the Regulations, and regulation 2.03A.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the specified criteria for the Subclass 820 visa.