Lu (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), by the applicant, who claimed to be the spouse of an Australian citizen. The delegate had refused the visa on the grounds that the couple had not been in a de facto relationship for the required 12 months prior to the application, and that no compassionate or compelling circumstances existed to justify a waiver of this requirement. The Administrative Appeals Tribunal was required to determine whether the parties were in a valid spouse relationship and, if so, whether the 12-month de facto relationship requirement could be waived.

The Tribunal was tasked with assessing whether the parties met the criteria for a spouse relationship under section 5F of the Migration Act 1958, which requires a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation. Crucially, the Tribunal also had to consider whether compassionate and compelling circumstances justified waiving the 12-month de facto relationship requirement, as provided for in regulation 2.03A of the Migration Regulations 1994. In making these determinations, the Tribunal was directed to have regard to all circumstances of the relationship, including financial and social aspects, the nature of the household, and the nature of the commitment, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married, evidenced by a marriage certificate and photographs of a ceremony conducted during COVID-19 restrictions. While the couple maintained separate bank accounts due to the applicant's business, they also shared a joint account, indicating some pooling of financial resources. The Tribunal noted that the applicant had funded her initial stay in Australia through her own savings. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant met the criteria for a Subclass 820 visa, implying that the assessment of the remaining criteria, including the waiver of the 12-month requirement, was to be undertaken by the Minister.