Gonzalez (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801. The applicant sought review of a decision concerning her eligibility for the visa, which requires the applicant to be the spouse or de facto partner of an Australian citizen, permanent resident, or eligible New Zealand citizen. The central issue was whether the applicant and her sponsor continued to meet the definition of de facto partners under section 5CB of the Migration Act 1958 (Cth) at the time of the decision.

The Tribunal was required to determine if the applicant and the sponsor were in a de facto relationship, as defined by section 5CB of the Act, which necessitates a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, cohabitation (or not living separately and apart on a permanent basis), and that the couple are not related by family. In assessing this, the Tribunal had to consider all circumstances of the relationship, including the financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.09A(3) of the Migration Regulations 1994.

The Tribunal considered evidence relating to the financial aspects of the relationship, the nature of their household, social activities, and their commitment to each other. While acknowledging some concern regarding the sponsor's prior withdrawal of support and reluctance to disclose personal reasons for this, the Tribunal ultimately accepted the applicant's and sponsor's written and oral evidence as credible. The Tribunal found that the parties provided each other with emotional support and viewed their relationship as long-term, despite a brief separation in 2018 and the sponsor's earlier email withdrawing support.

Consequently, the Tribunal remitted the application for reconsideration. The direction was that the applicant met the criteria under clause 801.221(2)(c) of Schedule 2 to the Regulations, indicating that the de facto relationship requirement was satisfied for the Subclass 801 visa.