Gracia (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa made by the applicant, who was born in the Philippines. The applicant claimed to be in a de facto relationship with the sponsor, an Australian citizen, also born in the Philippines. The core of the dispute revolved around whether the parties met the criteria for a de facto relationship under the Migration Regulations 1994, particularly in light of the applicant's prolonged period of unlawful status in Australia and the claimed lack of financial pooling.

The Tribunal was required to determine if the applicant and sponsor were in a genuine and continuing de facto relationship, as defined by section 5CB of the Migration Act 1958 and elaborated in regulation 1.09A of the Migration Regulations 1994. This involved assessing all circumstances of the relationship, including financial aspects, the nature of their household, social aspects, and their commitment to each other, to ascertain if they had a mutual commitment to a shared life to the exclusion of all others, and if they lived together or did not live separately and apart on a permanent basis.

The Tribunal reasoned that while the parties claimed to have reconciled and were living together, the evidence regarding the financial aspects of their relationship was insufficient. The applicant, having been in Australia unlawfully for an extended period, could not provide evidence of financial pooling or sharing, attributing this to his lack of work rights and fear of his unlawful status being discovered. Although the applicant acknowledged working during his unlawful period, he maintained his income was casual and sporadic, and he was reluctant to enter into joint financial arrangements. The Tribunal considered this lack of demonstrable financial interdependence, alongside other factors, in its assessment of the genuineness and continuing nature of the de facto relationship.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, concluding that the applicant did not satisfy the criteria for the grant of the visa.