Silvia (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by Ms. Silvia, an Indonesian national, who was in a relationship with Mr. Jacques, an Australian citizen. The primary dispute revolved around whether Ms. Silvia was the de facto partner of Mr. Jacques at the time of the visa application, and subsequently, whether they were in a spousal relationship given their marriage and Ms. Silvia's pregnancy. The decision was made by Steven Griffiths, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant qualified as the de facto partner of the sponsor at the time of the visa application, as defined by section 5CB of the Migration Act 1958 (Cth), and whether she was considered the spouse of the sponsor at the time of the decision, as defined by section 5F of the Act. These determinations were crucial for satisfying the criteria for the Subclass 820 visa, specifically clause 820.211(2)(a) which requires the applicant to be the spouse or de facto partner of an Australian citizen, permanent resident, or eligible New Zealand citizen at the time of application.

The Tribunal considered the various aspects of the relationship, including financial, household, social, and commitment elements, as outlined in regulation 1.15A of the Migration Regulations 1994. Evidence presented included proof of address, joint travel, relationship registration, photos of social events and family gatherings, and confirmation of pregnancy. The Tribunal noted that the sponsor was an Australian citizen by birth. Given the evidence and the regulatory framework, the Tribunal found that the applicant met certain criteria for the visa.

Consequently, the Tribunal remitted the application for the Partner (Temporary) (Class UK) visa to the Minister with a direction that the applicant meets the criteria specified in clause 820.211(2) and clause 820.221(1) of Schedule 2 to the Regulations. This indicated that further consideration was required by the Minister regarding the remaining criteria for the Subclass 820 visa.