Dang (Migration)

The Administrative Appeals Tribunal considered the application of a Vietnamese national for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse). The applicant sought to establish a de facto relationship with his Australian permanent resident sponsor. The primary dispute concerned whether the parties had been in a genuine and continuing de facto relationship for the required 12-month period prior to the visa application, or if compelling and compassionate circumstances warranted a waiver of this requirement.

The Tribunal was required to determine if the parties met the criteria for a de facto relationship as defined by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). This involved assessing whether they had a mutual commitment to a shared life to the exclusion of all others, whether the relationship was genuine and continuing, if they lived together or did not live separately and apart on a permanent basis, and if they were not related by family. Additionally, the Tribunal had to consider the additional criteria for de facto relationships, including the duration of the relationship and whether it had been registered under state law.

The Tribunal found the applicant and sponsor to be credible witnesses, noting their consistent and coherent oral evidence regarding their meeting, relationship development, and living arrangements. It accepted that they met in June 2011, commenced a de facto relationship in November 2011, and had a mutual commitment to each other to the exclusion of all others. Despite a period of geographical separation due to the applicant’s studies in Adelaide and the sponsor’s employment in Sydney, the Tribunal was satisfied that their relationship continued and they planned a long-term future together. Crucially, the Tribunal noted that the parties had registered their relationship with the NSW Registry of Births Deaths and Marriages, which satisfied the requirement under regulation 2.03A(3) that the 12-month cohabitation period would not apply if the de facto relationship had been registered.

Consequently, the Tribunal concluded that the applicant met the criteria for the Subclass 820 visa, including clauses 820.211 and 820.221 of Schedule 2 to the Regulations, and regulation 2.03A. The application was remitted for reconsideration with a direction that the applicant met these criteria.