OLIVEIRA OTAZU HERBETTA (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by the applicant, Oliveiria Ota Zu Herbetta, who claimed to be the de facto partner of an Australian citizen sponsor. The decision was made by Senior Member Ann Duffield of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant and the sponsor were in a de facto relationship as defined by the *Migration Act 1994* (Cth) and the *Migration Regulations 1994* (Cth) at the time of the visa application and at the time of the decision. This required consideration of whether they had a mutual commitment to a shared life to the exclusion of all others, that the relationship was genuine and continuing, that they lived together or did not live separately and apart on a permanent basis, and that they were not related by family.

The Tribunal considered all circumstances of the relationship, including financial aspects, the nature of the household, social aspects, and the nature of their commitment to each other, as outlined in regulation 1.09A(3) of the *Migration Regulations 1994*. The parties provided extensive documentary evidence, including joint bank account statements, tax returns identifying each other as de facto spouses, a tenancy agreement, and medical evidence of the applicant's pregnancy. Their oral evidence was also found to be spontaneous, consistent, and compelling. The Tribunal was satisfied that the parties were in a genuine, continuing, and exclusive spousal relationship.

The Tribunal remitted the application for reconsideration, directing that the applicant met the criteria for a Subclass 820 visa, specifically clauses 820.211 and 820.221 of Schedule 2 to the Regulations, and regulation 2.03A.