Singh (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820. The applicant sought to establish that they were the de facto partner of an Australian permanent resident at the time of the visa application and continued to be so at the time of the decision. A further issue was whether compelling reasons existed to justify a waiver of the Schedule 3 criteria.

The court was required to determine whether the applicant was the spouse or de facto partner of the sponsor as at the date of the visa application and at the date of the decision, and whether compelling reasons justified a waiver of the Schedule 3 criteria. The definition of "de facto partner" under s 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 not being related by family, was central to the first issue. The court also had regard to the factors outlined in regulations 1.09A and 1.15A, which include the financial and social aspects of the relationship, the nature of the household, and the commitment to each other.

The Tribunal found that the parties had lived together since November 2015 and that the applicant was the de facto partner of the sponsor as at the date of the visa application on 16 March 2018, noting evidence such as failed pregnancies and an engagement ring photograph. The Tribunal also noted that the parties were legally married on 17 August 2018. The Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant met specific criteria for the Subclass 820 visa, including cl 820.211(2)(a) and (d)(ii) of Schedule 2 to the Regulations, and reg 2.03A.