MacCormack (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant, a British citizen, claimed to be in a de facto relationship with the review applicant, an Australian citizen. The core dispute revolved around whether the parties were genuinely and continuing in a de facto relationship at the time of the visa application and at the time of the decision, as required by 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 the sponsor were in a de facto relationship, as defined by section 5CB of the Migration Act 1958, and whether this relationship was genuine and continuing. This required consideration of all the circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.09A(3) of the Migration Regulations 1994. A discrepancy in the stated commencement date of the de facto relationship between the applicant and sponsor also required examination.

The Tribunal reasoned that to establish a de facto relationship, there must be a mutual commitment to a shared life to the exclusion of all others, the relationship must be genuine and continuing, the couple must live together or not live separately and apart on a permanent basis, and they must not be related by family. The Tribunal considered various forms of evidence, including bank statements, utility bills, telephone records, photographs, statutory declarations from friends, and social media messages, to assess the financial, social, and household aspects of the relationship, as well as the parties' commitment to each other. Despite some discrepancies, the Tribunal found that the visa applicant met certain criteria, leading to the decision to remit the application for reconsideration.

The Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration by the Minister. The direction was that the visa applicant met the criteria specified in clause 309.211(2) of Schedule 2 to the Regulations and regulation 2.03A.