Sunarwati (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), made by the applicant, Ms Sunarwati, who claimed to be the de facto partner of an Australian citizen. The Administrative Appeals Tribunal, constituted by Member Simone Burford, was required to determine whether the relationship between the applicant and the sponsor met the definition of a de facto relationship under section 5CB of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the applicant and the sponsor were in a de facto relationship as defined by section 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 permanently), and that the couple are not related by family. The Tribunal also had to consider the criteria outlined in clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Migration Regulations 1994, which require 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 the application and decision.

The Tribunal reasoned that as the parties were not married, they could only satisfy the visa requirements on the basis of a de facto relationship. It considered various aspects of the relationship, including its financial, household, social, and commitment elements, as prescribed by regulation 1.09A of the Migration Regulations. The Tribunal noted that it had access to significantly more information than the original delegate, including details of the relationship prior to the application and third-party testimony. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the criteria for a Subclass 820 (Partner (Temporary)) visa, specifically clauses 820.211(2) and 820.221(1) of Schedule 2 to the Regulations, and regulation 2.03A.