Drew (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Residence) (Class BS) visa, subclass 801 (Spouse). The applicant sought the visa based on a relationship with a sponsor who was an Australian citizen, permanent resident, or eligible New Zealand citizen. The core dispute arose when the sponsor withdrew their sponsorship and indicated the relationship had ceased. The Tribunal was tasked with determining whether the applicant continued to meet the criteria for the visa at the time of the decision, specifically whether they were still in a de facto relationship with the sponsor.

The legal issues before the Tribunal were whether the applicant and the sponsor were in a de facto relationship as defined by section 5CB of the Migration Act 1958 (Cth) and regulation 1.09A of the Migration Regulations 1994. This required the Tribunal to assess if the parties had a mutual commitment to a shared life to the exclusion of all others, if 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. The Tribunal also had to consider all the circumstances of the relationship, including financial, household, social aspects, and the nature of their commitment to each other.

The Tribunal found that the sponsor had informed the Department in July 2018 that the relationship had ceased, and the applicant had been placed on notice that the ongoing nature of the relationship was in question. Despite this, the applicant had not provided any documentary evidence to demonstrate the continuation of the relationship since the primary decision was made in August 2018. Consequently, the Tribunal was not satisfied that the parties shared finances, maintained a joint household, lived together, represented themselves as being in a relationship, or drew companionship and support from each other. Based on the lack of evidence and the sponsor's withdrawal, the Tribunal concluded that the applicant did not satisfy the criteria for a de facto relationship.

The Tribunal affirmed the decision not to grant the applicant the Partner (Residence) (Class BS) visa.