Smith (Migration)

This matter concerned an application for review of a decision to refuse a Partner (Temporary) (Class UK) visa. The applicant claimed to be the de facto partner of an Australian citizen. The Tribunal, presided over by P. Maishman, was required to determine whether the applicant met the criteria for the grant of the visa, specifically whether she was the de facto partner of the sponsor.

The central legal issue before the Tribunal was whether the applicant and her sponsor were in a de facto relationship as defined by section 5CB of the Migration Act 1958 (Cth) and elaborated upon in regulation 1.09A of the Migration Regulations 1994. This required consideration of all the circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other.

The Tribunal found that the applicant had failed to provide any evidence or information to support her claim of a de facto relationship, despite multiple requests from both the Department and the Tribunal. The delegate’s decision record indicated no response to invitations to provide evidence of the relationship, financial aspects, household arrangements, social aspects, or commitment. Similarly, the Tribunal sent two requests for information, to which no response was received. Applying the principles from *He v MIBP* [2017] FCAFC 206, which mandates consideration of specific matters outlined in regulation 1.09A(3), the Tribunal concluded that the applicant had not satisfied the criteria for the visa. Consequently, the Tribunal affirmed the decision not to grant the visa.