Shahid (Migration)

This matter concerned an appeal by an applicant for a Partner (Temporary) (Class UK) visa, subclass 820, against a decision that had been remitted by the Federal Circuit Court. The applicant and sponsor, who were married, had lived together for seven years and claimed to be in a genuine and continuing relationship. The court was required to consider whether the parties were in a de facto relationship for the purposes of the *Migration Act 1958* (Cth) and associated regulations.

The central legal issue was whether the applicant and sponsor met the criteria for a de facto relationship as defined by section 5CB of the *Migration Act 1958* (Cth) and elaborated upon in regulation 1.09A(3). This definition 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 court had to assess all circumstances of the relationship, including financial aspects, the nature of their household, social aspects, and the nature of their commitment to each other.

The Tribunal, despite initial reservations regarding the parties' assistance in providing evidence, ultimately considered all the evidence presented. It acknowledged that while some evidence did not strongly support a genuine relationship, it was prepared to accept that the evidence, when viewed in totality and giving the applicant and sponsor the benefit of the doubt on certain points, could support a genuine relationship at the time of the application. The Tribunal concluded that the matter should be remitted for reconsideration. The delegate's previous decision had found insufficient evidence regarding the pooling of financial resources, joint assets, shared living arrangements as a couple, and the presentation of the relationship to others as a de facto couple.