Jaramillo Torres (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Residence) (Class BS) visa, Subclass 801, made by the applicant and a secondary applicant. The core dispute concerned whether the relationship between the primary applicant and the sponsor continued to meet the definition of a de facto relationship as stipulated in section 5CB of the Migration Act 1958 (Cth). The Tribunal had before it significantly more documentation than was available to the original delegate who had refused the visa.

The legal issues before the Tribunal were whether the applicant and the sponsor were in a de facto relationship, and by extension, whether the criteria for the Subclass 801 visa were met. This required the Tribunal to consider all the circumstances of the relationship, including financial aspects, the nature of their household, social aspects, and their commitment to each other, as outlined in regulation 1.09A(3) of the Migration Regulations 1994.

The Tribunal's reasoning focused on assessing the evidence against the statutory definition of a de facto relationship. It noted that the sponsor was married at the time the de facto relationship commenced, but had separated from his wife. The Tribunal considered various factors, including financial integration, household arrangements, social aspects, and the parties' commitment to each other. Despite some initial inconsistencies regarding joint financial arrangements, the Tribunal found that the applicant met the criteria for the Subclass 801 visa in relation to clause 801.221(2)(c) of Schedule 2 to the Regulations, and the secondary applicant met the criteria under clause 801.321(a)(ii) of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the applications for Partner (Residence) (Class BS) visas for reconsideration by the Minister, with the direction that the primary applicant met the specified criteria for the Subclass 801 visa.