To (Migration)

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant sought review of a decision concerning their eligibility for the visa, with the core of the dispute revolving around whether the applicant and their sponsor, an Australian citizen, were in a genuine and continuing de facto relationship at the relevant times. The decision was made by a Member of the Tribunal.

The Tribunal was required to determine whether the parties met the criteria for a de facto relationship as defined by section 5CB of the Migration Act 1958 (Cth) and elaborated in regulation 1.09A of the Migration Regulations 1994. This involved assessing whether the parties had a mutual commitment to a shared life to the exclusion of all others, whether the relationship was genuine and continuing, whether they lived together or did not live separately and apart on a permanent basis, and whether they were related by family. The assessment was to consider all circumstances, including financial, social, household, and commitment aspects.

The Tribunal reasoned that while some evidence regarding pooled financial resources and shared household arrangements was limited, this needed to be viewed in context. The geographical separation of the parties was accepted as being due to the COVID-19 pandemic, which had disrupted their ability to spend time together. The Tribunal also noted the sponsor's modest financial means and reliance on the age pension. Despite these limitations, the Tribunal found the parties credible, acknowledged their knowledge of each other, and recognised their expressed need for companionship. The Tribunal also considered that the parties had lived together in Australia for over a month and had spent time with friends and family in Vietnam, including living at the applicant's home for a week.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the visa applicant met the criteria under cl.309.211(2), cl.309.221, and r.2.03A of the Migration Regulations.