RAASHED (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant claimed to be the de facto partner of an Australian citizen. The core dispute revolved around whether the parties were in a genuine and continuing de facto relationship, as required by the Migration Regulations 1994. The decision was made by Michael Cooke, Senior Member, of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the applicant and the sponsor were in a de facto relationship at the time of the visa application and at the time of the decision, and whether this relationship met the criteria outlined in the Migration Act 1958 and the Migration Regulations 1994. Specifically, the Tribunal had to consider the definition of a de facto relationship under section 5CB of the Act, 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. Furthermore, the Tribunal was required to consider all circumstances of the relationship, including the financial and social aspects, the nature of the household, and the nature of the commitment to each other, as detailed in regulation 1.09A(3).

The Tribunal's reasoning focused on assessing the evidence against the criteria in regulation 1.09A(3). Regarding the financial aspects, the Tribunal found that joint ownership of a significant asset, a joint bank account, and evidence of money transfers indicated a de facto partner-like financial arrangement. However, the nature of the household presented complexities. The sponsor had continued to live in the same house as his former wife to care for their three disabled children, despite a spousal separation. While the sponsor argued this was for family reasons and not a marriage-like relationship, the Tribunal noted that the children required care from both parents. The Tribunal concluded that, given the findings regarding the financial aspects and the ongoing complexities of the household arrangements, the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant met the criteria specified in clauses 309.211 and 309.221 of Schedule 2 to the Regulations, and regulation 2.03A.