Shah (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an applicant whose sponsor, an Australian citizen, had died after the application was lodged. The applicant and the deceased sponsor had formally registered their de facto relationship prior to the sponsor's death. The decision was made by Cheryl Cartwright, a member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant and the deceased sponsor were in a 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 Schedule 2 to the Migration Regulations 1994. This involved determining whether the parties met 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.

The Tribunal considered evidence of events subsequent to the visa application, including the applicant's continued care for the sponsor until his death, to logically demonstrate the existence of facts relevant to the issue of the de facto relationship at the time of application. The Tribunal applied the principles from *Jayasinghe v MIMA* [2006] FCA 1700 and *Minister for Immigration and Ethnic Affairs v Pochi* (1980) 4 ALD 139, which permit consideration of subsequent events if they shed light on the circumstances at the time of the application. The Tribunal was satisfied that the requirements of section 5CB(2) were met at both relevant times.

The Tribunal remitted the application for reconsideration with a direction that the applicant met the specified criteria for a Subclass 820 (Partner) visa, including clauses 820.211(2)(a) and 820.221(2)(b) and (c) of Schedule 2 to the Regulations, and regulation 2.03A.