Duarte De Paula Costa (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), made by the applicant, a citizen of Brazil, and sponsored by her partner. The core of the dispute revolved around whether the applicant and her sponsor were in a 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 decision was made by a Tribunal member, Susan Trotter.

The legal issues before the Tribunal were whether the applicant and the sponsor met the criteria for a de facto relationship under section 5CB of the Migration Act 1958 and regulation 1.09A of the Migration Regulations 1994. This required the Tribunal to consider all circumstances of the relationship, including the financial and social aspects, the nature of their household, and the nature of their commitment to each other. Additionally, the Tribunal had to determine if the applicant met the further criteria under regulation 2.03A, specifically regarding the duration of the de facto relationship prior to the application.

The Tribunal applied the principles established in *Bretag v MILGEA* [1991] FCA 582, allowing it to consider later events to logically demonstrate facts existing at the time of the application. It found that the evidence, encompassing financial contributions (joint bank account, car expenses, household bills, superannuation beneficiaries), household arrangements (shared address, living together since September 2015, interaction with sponsor's children), social aspects (representations to others, joint social activities, emergency contact status), and the nature of their commitment (duration of relationship, cohabitation, emotional support, plans for marriage and children, registration of a Civil Partnership), overwhelmingly supported the existence of a genuine and continuing de facto relationship. The Tribunal was satisfied that the applicant and sponsor were in a de facto relationship at the time of the visa application and continued to be so at the time of the decision.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant met the relevant criteria for a Subclass 820 (Partner (Temporary)) visa, specifically clauses 820.211(2) and 820.221(1) of Schedule 2 to the Regulations, and regulation 2.03A.