Deeraksa (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), made by an applicant who claimed to be the de facto partner of an Australian citizen at the time of application and the spouse at the time of decision. The sponsor had met the applicant in March 2016, and the applicant moved in with the sponsor in April 2016. The parties subsequently registered their relationship in August 2016 and married in March 2018, after the visa application was lodged in July 2016. The visa was refused in July 2018.

The primary legal issues before the Tribunal were whether the applicant was the de facto partner of the sponsor at the time of the visa application, as defined by s 5CB of the Migration Act 1958 (Cth), and whether she was the spouse of the sponsor at the time of the decision, as defined by s 5F of the Act. The Tribunal was required to consider all the circumstances of the relationship, including financial, household, social aspects, and the nature of the parties' commitment to each other, as outlined in regulations 1.09A and 1.15A of the Migration Regulations 1994 (Cth).

The Tribunal found that the parties were validly married, satisfying the requirements of a spousal relationship under s 5F of the Act. However, the Tribunal noted that if the parties are validly married, they may meet the requirements of a married relationship but not a de facto relationship. The Tribunal considered the evidence presented, including joint holidays and the parties' living arrangements, but ultimately concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for the Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), with a direction that the applicant met the criteria specified in cl 820.211 and cl 820.221 of Schedule 2 to the Regulations, and r.2.03A.