Lapatha (Migration)

The Administrative Appeals Tribunal considered an application by Bernadette Lapatha for a Partner (Temporary) (Class UK) visa (subclass 820). The application was opposed by the sponsor, John Etty, who withdrew his sponsorship due to concerns including his criminal convictions for assault. The core of the dispute revolved around whether Ms Lapatha and Mr Etty were in a genuine and continuing de facto relationship at the time of the visa application and at the time of the Tribunal's decision, as required by the Migration Regulations 1994.

The Tribunal was required to determine if the applicant met the criteria under regulation 820.211(2)(a) and 820.221, which necessitate the applicant being the spouse or de facto partner of an Australian citizen, permanent resident, or eligible New Zealand citizen. Specifically, the Tribunal had to assess whether the relationship between Ms Lapatha and Mr Etty constituted a de facto relationship as defined by section 5CB of the Migration Act 1958, considering the mutual commitment to a shared life, the genuine and continuing nature of the relationship, whether they lived together or did not live separately on a permanent basis, and whether they were related by family.

In reaching its decision, the Tribunal considered all circumstances of the relationship, including financial aspects, the nature of the household, social aspects, and the nature of the commitment to each other, as outlined in regulation 1.09A(3). The evidence indicated limited joint activities and travel, no joint financial commitments or assets, and that the applicant lived away from the sponsor's farm for employment. The Tribunal found that these factors, particularly the lack of significant financial pooling, shared household responsibilities, and the applicant's separate living arrangements for work, did not demonstrate a genuine and continuing de facto relationship that met the regulatory requirements.

Consequently, the Tribunal affirmed the decision not to grant Ms Lapatha the Partner (Temporary) (Class UK) visa, finding that she did not satisfy the necessary criteria for its grant.