Luff (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, subclass 820 (Spouse), made by a Canadian citizen who claimed to be the de facto partner of an Australian citizen. The core dispute revolved around whether the parties met the legislative criteria for a de facto relationship at the time of the visa application.

The Tribunal was required to determine if the visa applicant was the de facto partner of the sponsor as defined by sections 5F and 5CB of the Migration Act 1958 (Cth). Specifically, the Tribunal had to assess whether the parties had a mutual commitment to a shared life to the exclusion of all others, whether the relationship was genuine and continuing, if they lived together, and if they were not related by family, as stipulated by section 5CB(2). The assessment also required consideration of all circumstances of the relationship, including financial, social, household, and commitment aspects, as outlined in regulation 1.09A(3) of the Migration Regulations 1994.

The Tribunal reasoned that while the parties were not married at the time of the application, they could still satisfy the criteria for a de facto relationship. The decision notes that the parties met in January 2015, met in person in May 2015, claimed to have entered a committed relationship two months prior to meeting in person, and agreed to marry on 25 December 2015. Crucially, the Tribunal received new evidence on 19 April 2018, which satisfied it that the criterion for the visa was met.

Consequently, the Tribunal remitted the application for reconsideration, directing that the applicant met the criteria for a Subclass 820 visa.