Li (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801, by an applicant claiming to be the de facto partner of an Australian citizen sponsor. The central dispute revolved around whether the parties were genuinely and continuing to be in a de facto relationship at the time of the decision, as required by cl.801.221(2)(c) of the Migration Regulations 1994. The Tribunal was tasked with determining the existence of this de facto relationship.

The legal issues before the Tribunal were whether the applicant and sponsor were in a de facto relationship, as defined by s.5CB of the Migration Act 1958, and whether this relationship met the criteria outlined in r.1.09A(3) of the Migration Regulations 1994. Specifically, the Tribunal had to consider all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as mandated by the legislation and case law such as *He v MIBP* [2017] FCAFC 206.

The Tribunal considered various aspects of the relationship. While there was no evidence of joint ownership of major assets or significant joint financial commitments, the parties had cohabited for approximately six years, shared responsibility for housework, and engaged in joint social activities. The applicant was also pregnant with the sponsor’s child. The Tribunal accepted that any temporary separations were not intended to be permanent. Despite the limited evidence regarding joint finances, the Tribunal found that the parties had demonstrated a mutual commitment to a shared life, that the relationship was genuine and continuing, and that they lived together.

Consequently, the Tribunal remitted the application for a Partner (Residence) (Class BS) visa for reconsideration by the Minister, with a direction that the applicant met the criteria specified in cl.801.221(2)(c) and r.2.03A of the Regulations.