Mackey (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, which was refused. The applicant claimed to be the de facto partner of an Australian citizen sponsor. The Tribunal was required to determine whether the parties were in a genuine and continuing de facto relationship at the time of the visa application and at the time of the decision, as required by clauses 820.211(2)(a) and 820.221 of the Migration Regulations 1994.

The Tribunal considered the definition of a de facto relationship under section 5CB of the Migration Act 1958, which requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, cohabitation, and that the couple are not related by family. In assessing these criteria, the Tribunal was directed to consider all circumstances of the relationship, including financial aspects, the nature of the household, social aspects, and the nature of the parties' commitment to each other, as outlined in regulation 1.09A(3). The Tribunal noted that the parties had no joint ownership of significant assets and no joint liabilities beyond their shared tenancy agreement. While a joint bank account was opened on the advice of a migration agent, it was now used for savings for travel and a wedding. The parties described a flexible arrangement for sharing day-to-day expenses, with earnings paid into separate personal accounts.

Given the evidence presented, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant met the criteria for the Subclass 820 visa, implying that further consideration of the remaining criteria was necessary.