Tang (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by the applicant, who claimed to be the de facto partner of the sponsor, an Australian citizen. The central dispute before the Tribunal was whether the applicant and sponsor were in a de facto relationship at the time of the visa application and continued to be so at the time of the Tribunal's decision.

The legal issues before the Tribunal were to determine if the parties met the definition of a de facto relationship as defined by section 5CB of the Migration Act 1958 (Cth), which requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, cohabitation, and that the couple are not related by family. The Tribunal was also required to consider the additional criteria for a de facto relationship under regulation 2.03A of the Migration Regulations 1994 (Cth), specifically the requirement that the applicant must have been in the de facto relationship for at least 12 months prior to the application, unless certain exceptions applied.

The Tribunal considered the financial, household, social, and commitment aspects of the relationship as outlined in regulation 1.09A(3). While finding no joint ownership of major assets or liabilities, the Tribunal noted significant financial transfers from the sponsor to the applicant, indicating a degree of financial interdependence, particularly given the applicant's inability to work. The Tribunal concluded that the parties demonstrated a mutual commitment to a shared life to the exclusion of all others, that their relationship was genuine and continuing, and that they were living together. Consequently, the Tribunal found that the parties were in a de facto relationship for the purposes of the Act and that the applicant met the relevant visa criteria.

The Tribunal remitted the matter for reconsideration with a direction that the applicant met the criteria for the Subclass 820 visa. This was based on the finding that the parties were in a de facto relationship at the relevant times, the applicant was sponsored by the sponsor, and the application was made within the prescribed timeframe after the applicant's previous substantive visa ceased, thus avoiding Schedule 3 criteria. The Tribunal also noted that the 12-month de facto relationship requirement under regulation 2.03A(3) would need to be satisfied, as no exceptions were evident.