Sorrell (Migration) - [2025] ARTA 431

Sorrell (Migration) [2025] ARTA 431 (3 March 2025)
Decision and
Reasons for Decision
Applicant:Mr Terence George Sorrell
Respondent:  Minister for Home Affairs
Tribunal Number:  2201574
Tribunal:General Member Howard
Date:3 March 2025
Place:Brisbane
Decision:The Tribunal affirms the decision not to grant the review applicant a Partner (Residence) (Class BS) visa.

Statement made on 03 March 2025 at 4:12pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing relationship – relationship ceased – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 801.221; r 1.09
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 January 2022 to refuse to grant the review applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review applicant applied for the visa on 2 November 2020 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the review applicant did not satisfy cl 801.221 of Schedule 2 to the regulations.
The applicant appeared before the Tribunal on 6 February 2025 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The review applicant is Mr Terence George Sorrell, a citizen of the United Kingdom. The sponsor is Ms Courtney Ilana McEvoy, an Australian citizen.
The review applicant applied for a Subclass 820 (Temporary) Partner visa on the grounds of being in a de facto relationship with his sponsor. The review applicant was granted a Subclass 820 visa on 19 August 2021.
The Department received information on 24 August 2021 that the relationship between the parties had broken down.
On 18 January 2022, the delegate determined that the review applicant did not satisfy the requirements of cl 801.221 of Schedule 2 to the regulations and refused the grant of the visa.
On 7 February 2022, the review applicant lodged an Application for Review with the Administrative Appeals Tribunal (now the Administrative Review Tribunal), (the Tribunal).
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue before the Tribunal is whether, at the time of this decision, the applicant is a spouse or de facto partner of the sponsor.
Subclause 801.221(1) requires that the applicant must, at time of decision, satisfy subclause (2), (2A), (3), (4), (5), (6), or (8) of clause 801.221.
Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant.
Are the parties in a de facto relationship?
‘De facto partner’ is defined in s.5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).
In forming an opinion whether they are in a de facto relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3) which is attached to this decision. Each specific matter contained in reg 1.09A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
Based on the evidence, the sponsor informed the Department on 24 August 2021 that her relationship with the review applicant had broken down. The review applicant confirmed the breakdown of the relationship at the Hearing of the matter.
Having carefully considered all the evidence, the Tribunal is not satisfied that at the time of this decision the review applicant and sponsor have a mutual commitment to a shared life as a de facto couple to the exclusion of all others and that the relationship between them has been and remains genuine and continuing. The Tribunal is also not satisfied that they have lived together or not separately and apart on a permanent basis.
On the basis of the above the Tribunal is not satisfied that the requirements of s 5CB(2) are met at the time of this decision. Therefore, the applicant does not meet cl 801.221(2)(c).
Furthermore, the review applicant has not claimed, and there is no evidence before the Tribunal, that the review applicant meets the alternative criteria in cl 801.221(2A), (3), (4), (5) or (6).
For the reasons above, the review applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the review applicant a Partner (Residence) (Class BS) visa.
ATTACHMENT - Extract from Migration Regulations 1994
1.09A     De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets; and
(ii)any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i)any joint responsibility for the care and support of children; and
(ii)the living arrangements of the persons; and
(iii)any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being in a de facto relationship with each other; and
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv)whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).