Gyimesi (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa by Ms Gyimesi, who claimed to be the de facto partner of an Australian citizen. The Tribunal was required to determine whether the parties were in a genuine and continuing de facto relationship, as defined by section 5CB of the Migration Act 1958 (Cth).

The legal issues before the Tribunal were whether Ms Gyimesi and the review applicant had a mutual commitment to a shared life to the exclusion of all others, whether their relationship was genuine and continuing, whether they lived together or did not live separately and apart on a permanent basis, and whether they were not related by family. In determining these issues, the Tribunal was required to consider all the circumstances of the relationship, including the financial, household, and social aspects, and the nature of their commitment to each other, as outlined in regulation 1.09A(3) of the Migration Regulations 1994 (Cth).

The Tribunal considered various aspects of the parties' relationship, including its commencement shortly after Ms Gyimesi separated from her husband, the registration of their civil partnership, and the timing of the visa application relative to a refusal of a further student visa. It noted the financial arrangements, such as separate business bank accounts and a joint account for household expenses, and the presence of the review applicant's ex-husband's name on the rental lease. The Tribunal also examined the social aspects, the applicant's role in the review applicant's children's lives, and the nature of their commitment, acknowledging the relationship's duration of five years at the time of the decision.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the visa applicant met certain criteria for a Subclass 309 visa, specifically clauses 309.211 and 309.221 of Schedule 2 to the Regulations, and regulation 2.03A.