Holt (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner). The applicant claimed to be the de facto partner of an Australian citizen sponsor. The Tribunal was required to determine whether the applicant satisfied the criteria for the visa, specifically whether they were in a de facto relationship as defined by the Migration Act 1994 and the Migration Regulations 1994, and whether any issues under Public Interest Criterion 4020 arose.

The primary legal issue before the Tribunal was whether the applicant and the sponsor were in a de facto relationship at the time of the visa application and at the time of the decision. This required an assessment of all the circumstances of their relationship, including the financial and social aspects, the nature of their household, and their mutual commitment to each other, as outlined in regulation 1.09A(3) of the Migration Regulations 1994. The Tribunal also needed to consider if Public Interest Criterion 4020 applied, which relates to the provision of false or misleading information in previous visa applications.

The Tribunal considered the evidence provided regarding the financial aspects of the relationship, including bank statements showing shared expenses and deposits. It noted that the definition of a de facto relationship under section 5CB of the Act requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, cohabitation, and that the couple are not related by family. The Tribunal found that the evidence presented warranted further consideration of the remaining criteria for the Subclass 820 visa.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant be taken to meet specific criteria, namely cl.820.211(2)(a), cl.820.221(1)(a), and r.2.03A of the Migration Regulations 1994, indicating that the assessment of the de facto relationship and potentially other criteria required further review.