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 Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met the criteria for the visa, specifically whether they were in a de facto relationship as defined by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth).

The primary legal issue before the Tribunal was to assess whether the applicant and sponsor were in a de facto relationship, as defined by section 5CB of the Act. This required considering all circumstances of the relationship, including financial, household, social aspects, and the nature of their commitment to each other, as outlined in regulation 1.09A(3). The Tribunal also had to consider the evidence presented, including documentary evidence and oral testimony from both the applicant and the sponsor.

The Tribunal found that while the sponsor was the sponsoring partner, the evidence presented regarding the financial aspects of the relationship was inconsistent and contradictory. Despite these inconsistencies, the Tribunal was ultimately satisfied that the applicant was the de facto partner of the sponsor within the meaning of section 5CB of the Act. However, due to the unsatisfactory evidence concerning the financial aspects, the Tribunal determined that the application should be remitted for reconsideration. The Tribunal directed that for the purpose of reconsideration, the applicant was to be taken as meeting criteria cl.801.221(2)(c) of Schedule 2 to the Regulations and r.2.03A.