Moody (Migration)

This matter concerned an appeal by a visa applicant against a delegate's refusal to grant a Partner (Temporary) (Class UK) visa (Subclass 820). The refusal was based on the applicant not satisfying the requirement of being in a de facto relationship for 12 months prior to the application, and the delegate not being satisfied that the relationship was genuine and continuing. The applicant, a Filipino national, met the sponsor online in 2018, and they married in Australia in June 2019, shortly after her arrival on a tourist visa with her son. They subsequently had a child together in March 2023.

The primary legal issue before the Tribunal was whether the applicant and sponsor were in a de facto relationship for the requisite 12 months before lodging the visa application. The Tribunal was also required to consider whether there were compelling reasons to waive this 12-month requirement. Furthermore, the Tribunal had to determine if the parties met the criteria for a spouse relationship under section 5F of the Migration Act 1958, which involves assessing the financial and social aspects of the relationship, the nature of their household, and the nature of their commitment to each other, as detailed in regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal considered the evidence presented regarding the financial aspects, noting a joint bank account, shared shopping, joint purchase of furniture and a car, and the sponsor's sole responsibility for bills due to his greater financial literacy. The nature of the household was examined, highlighting the applicant's role as the primary caregiver and homemaker, and their shared living arrangements. The social aspects and commitment were also assessed, with the Tribunal acknowledging the parties' marriage and the birth of their child. Crucially, the Tribunal found that the parties were validly married under Australian law, satisfying the definition of a spouse relationship under section 5F(2)(a).

Given the findings, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant met the criteria for a Subclass 820 Partner visa under clauses 820.211(2)(a) and 820.221(1)(a) of Schedule 2 to the Regulations, indicating that the delegate should proceed to consider the remaining criteria for the visa.