Poblete (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by a Philippines national. The applicant claimed to have been in a de facto relationship with the Australian citizen sponsor from 1 November 2008 until the sponsor's death on 9 August 2017. The primary dispute concerned whether the applicant met the criteria for the visa, particularly in light of the sponsor's death and the applicant's status as an unlawful non-citizen for an extended period.

The Tribunal was required to determine two main legal issues. Firstly, whether the applicant met the requirements of clause 820.211(2)(a) at the time of application and clause 820.221(2) at the time of decision, which relate to the existence of a de facto relationship and the circumstances following the sponsor's death. Secondly, the Tribunal had to consider whether the applicant met the Schedule 3 criteria, and if not, whether there were compelling reasons for these criteria to be waived.

In its reasoning, the Tribunal applied the definition of a de facto relationship under section 5CB of the Migration Act 1958 (Cth), which requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, cohabitation (or not living separately and apart on a permanent basis), and that the couple are not related by family. The Tribunal also had regard to regulation 1.09A(3) of the Migration Regulations 1994, which mandates consideration of financial, household, and social aspects of the relationship, as well as the nature of the commitment between the parties. The Tribunal noted that the applicant had provided evidence of financial support from the sponsor due to her lack of a work permit.

The Tribunal concluded that the matter should be remitted for reconsideration by the Minister. It directed that the applicant meets the criteria under cl 820.211(2), cl 820.221(2), and reg 2.03A of the Migration Regulations 1994, indicating that further assessment of the remaining visa criteria was necessary.