Taylor (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by a 42-year-old Canadian man, the applicant, and sponsored by a 28-year-old Australian woman. The dispute before the Tribunal, presided over by Nicola Findson, centred on whether the parties were in a genuine and continuing de facto relationship at the time of the visa application and at the time of the decision.

The legal issues before the Tribunal were whether the parties were in an ongoing de facto relationship, whether this relationship had existed for at least 12 months prior to the application, and whether the relationship was genuine and continuing at the time of the decision. These determinations were required to satisfy clauses 820.211(2)(a) and 820.221 of the Migration Regulations 1994, which stipulate that the applicant must be the de facto partner of an Australian citizen, permanent resident, or eligible New Zealand citizen at both the time of application and the time of decision.

The Tribunal considered the definition of a de facto relationship under s.5CB of the Migration Act 1958, 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 on a permanent basis), and that the couple are not related by family. In assessing these criteria, the Tribunal was required to consider all circumstances of the relationship, including financial aspects, the nature of the household, social aspects, and the commitment to each other, as outlined in regulation 1.09A(3). The Tribunal noted that the parties met in July 2013, commenced living together in October 2013, became engaged in May 2014, and planned to marry in October 2017. They had spent periods living together in Australia between work contracts, residing at the sponsor's mother's address and the sponsor's unit.

The Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the criteria for the Subclass 820 visa under clauses 820.211(2), 820.221, and regulation 2.03A.