Soeson (Migration)

This matter concerned an appeal by an applicant, a national of Estonia, against a decision of the Tribunal affirming the refusal of his Subclass 801 (Spouse) Partner (Residence) visa. The applicant claimed to have commenced a de facto relationship with the sponsor on 1 January 2013. The sponsor, who was 92 years old at the time the relationship allegedly commenced and 104 years old at the time of her death on 13 April 2024, was the widow of the applicant's maternal grandfather. The applicant had previously been granted a Subclass 820 (Provisional) partner visa on 24 July 2017.

The primary legal issue before the court was whether the applicant met the criteria for the grant of a Subclass 801 visa, particularly in light of the sponsor's death. This required determining if an exception to the sponsorship requirement applied under clause 801.221(5) of the Regulations. Specifically, the court had to consider whether the applicant was the holder of a Subclass 820 visa, would have met the requirements of subclause (2) or (2A) but for the sponsor's death, and satisfied the Minister that the parties would have continued to be in a de facto relationship had the sponsor not died.

The Tribunal found that the applicant had not established that he and the sponsor were in a genuine and continuing de facto relationship. While the parties had cohabited at a Bankstown residence until the sponsor entered aged care, and the applicant held enduring powers of attorney and guardianship for the sponsor, the Tribunal was not satisfied that a de facto relationship commenced on 1 January 2013. Factors contributing to this finding included the significant age difference between the parties at the commencement of the claimed relationship, the lack of evidence of joint ownership of real estate or other major assets, and the fact that at the time of the sponsor's death, the parties were living separately and apart on a permanent basis. Furthermore, the Tribunal was not satisfied that the applicant would have continued to be the de facto partner of the sponsor if she had not died, given her cognitive, hearing, and visual impairments and her inability to communicate effectively with the Tribunal.

Consequently, the Tribunal affirmed the decision under review, concluding that the applicant had not met the requirements for the grant of the Subclass 801 visa.