Jakharia (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), made by the applicant, a citizen of Kenya, in relation to the sponsor, an Australian permanent resident. The applicant claimed to be in a de facto relationship with the sponsor at the time of application and subsequently married. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically concerning the existence of a genuine and continuing de facto relationship for at least 12 months prior to the application.

The legal issues before the Tribunal were whether the applicant and sponsor were in a de facto relationship as defined by section 5CB of the Migration Act 1958 (Cth) at the time of the visa application, and whether they met the additional criteria stipulated in regulation 2.03A of the Migration Regulations 1994 (Cth), including the 12-month relationship duration requirement. The Tribunal also had to consider the definition of a spouse relationship under section 5F of the Act, given the subsequent marriage.

The Tribunal applied the principles outlined in sections 5CB and 5F of the Act and regulations 1.09A and 1.15A, which require consideration of all circumstances of the relationship, including financial, household, social aspects, and the nature of commitment. The Tribunal found the applicant and sponsor to be credible witnesses and accepted their oral evidence. It considered documentary evidence, including a shared lease, furniture receipts, bank statements showing financial pooling, and the opening of a joint account. The Tribunal noted that later events could be had regard to as they logically showed the existence of facts at the time of application, citing *Bretag v MILGEA* [1991] FCA 582.

The Tribunal remitted the application for reconsideration, directing that the applicant met the criteria for a Subclass 820 visa under clauses 820.211(2) and 820.221(1)(a) of Schedule 2 to the Regulations, and regulation 2.03A.