Ma (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa by a Vietnamese national, the applicant, who claimed to be in a de facto relationship with an Australian permanent resident, the sponsor. The Administrative Appeals Tribunal was required to determine whether the parties were in a genuine de facto relationship as defined by section 5CB of the Migration Act 1994 at the time of the visa application and at the time of the decision.

The primary legal issue before the Tribunal was whether the applicant and sponsor met the criteria for a de facto relationship under the Migration Act and Regulations. Specifically, the Tribunal had to consider whether the parties demonstrated a mutual commitment to a shared life to the exclusion of all others, whether their relationship was genuine and continuing, whether they lived together or did not live separately and apart on a permanent basis, and whether they were not related by family. In assessing these elements, the Tribunal was required to consider all the circumstances of the relationship, including financial aspects, the nature of their household, social aspects, and their commitment to each other, as outlined in regulation 1.09A(3) of the Migration Regulations 1994.

The Tribunal found that the parties did not satisfy the criteria for a de facto relationship. While they claimed to have met in June 2012 and entered into a committed relationship in November 2013, moving in together in April 2014 and registering their relationship in November 2014, the Tribunal noted significant deficiencies in their evidence. The parties were unaware of each other's financial situations, lived in a house-share arrangement, and had travelled separately. The Tribunal concluded that the evidence did not demonstrate a genuine and continuing de facto relationship with a mutual commitment to a shared life to the exclusion of all others, nor did it show progress towards shared goals.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, finding that the applicant did not meet the requirements for the visa.