TIMSAH (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an applicant who claimed to be the de facto partner of an Australian citizen. The central dispute revolved around whether the applicant met the criteria for a de facto relationship as defined by the Migration Act 1994 and the Migration Regulations 1994, and consequently, whether they satisfied the Schedule 3 criteria for the visa. The decision was made by Christine Kannis, a member of the Tribunal.

The legal issues before the Tribunal were twofold: firstly, whether the applicant was in a de facto relationship with the sponsor as defined by section 5CB of the Act, and secondly, if so, whether the applicant met the Schedule 3 criteria for the visa. The definition of a de facto relationship under section 5CB(2) 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. Regulation 1.09A(3) further mandates consideration of specific financial, household, social, and commitment aspects of the relationship.

The Tribunal considered extensive evidence, including statutory declarations and financial documents, which demonstrated that the parties had pooled their financial resources, shared day-to-day household expenses, and lived at the same residential addresses since the time of application. The applicant had commenced employment and was contributing to the joint account used for rent and other expenses. The Tribunal found that the parties had a mutual commitment to a shared life and that their relationship was genuine and continuing. Given the evidence presented, the Tribunal concluded that the applicant met the criteria for being in a de facto relationship and that there were compelling reasons for not applying the Schedule 3 criteria.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the specified criteria for the Subclass 820 Partner visa, including clauses 820.211(2)(a) and 820.221(1)(a) of Schedule 2, regulation 2.03A, and clause 820.211(2)(d).