Doornbos (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), by an applicant claiming to be the de facto partner of an Australian citizen. The core dispute revolved around whether the parties 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 the Migration Regulations 1994. The case was heard by Member Mark O'Loughlin.

The legal issues before the Tribunal were whether the parties' relationship met the definition of a de facto relationship under section 5CB of the Migration Act 1958 and regulation 1.09A of the Migration Regulations 1994. Specifically, the Tribunal had to consider all circumstances of the relationship, including financial aspects, the nature of the household, social aspects, and the nature of the parties' commitment to each other, to determine if they had a mutual commitment to a shared life to the exclusion of all others, if the relationship was genuine and continuing, and if they lived together or did not live separately and apart on a permanent basis.

The Tribunal reasoned that a substantial amount of further information had been provided since the initial delegate's decision, offering a clearer picture of the relationship. This included evidence of a joint bank account, shared living expenses, joint health cover, travel, lease documents in both names, wills in each other's favour, and witness statements. While the parties were not in a financial position to acquire major assets at the time of the application, this was understandable and not fatal to their claim. The Tribunal noted that the definition of a de facto relationship requires consideration of various factors, including financial and social aspects, household arrangements, and commitment, as outlined in regulation 1.09A(3).

Given the additional evidence and the need for a comprehensive assessment of all relevant factors, the Tribunal remitted the application for reconsideration. The direction was that the applicant met the criteria for a Subclass 820 visa under clauses 820.211(2) and 820.221 of Schedule 2, and regulation 2.03A of the Migration Regulations 1994.