KHAN (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801. The applicant, who had entered Australia on a tourist visa and was later granted a Subclass 820 visa, claimed that his de facto relationship with the sponsor had ceased and that he had suffered family violence perpetrated by the sponsor. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant was the de facto partner of the sponsor as defined by section 5CB of the *Migration Act 1958* (the Act).

The primary legal issue before the Tribunal was whether the applicant met the criteria for the Partner (Residence) visa, specifically concerning the existence and cessation of a de facto relationship and the occurrence of family violence. This involved assessing whether the parties had a mutual commitment to a shared life to the exclusion of others, whether the 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, all in accordance with section 5CB(2) of the Act and Regulation 1.09A of the *Migration Regulations 1994*. The Tribunal also had to consider whether the applicant had suffered family violence as defined by Regulation 1.21.

The Tribunal considered all the evidence presented, including information from the Department's file and evidence submitted during the review process. It was satisfied that the applicant was the de facto partner of the sponsor and that their de facto relationship had ceased. Furthermore, the Tribunal was satisfied that the applicant had suffered family violence. Consequently, the Tribunal remitted the application for a Partner (Temporary) (Class UK) visa to the Minister for reconsideration, directing that the applicant met the criteria under cl.801.221(2) and cl.801.221(6) of Schedule 2 to the Regulations.