To (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), made by a Vietnamese national. The applicant sought to establish a genuine and continuing de facto relationship with an Australian permanent resident. The dispute arose when the Department refused the application, finding that the applicant had not demonstrated a genuine de facto relationship, despite the birth of a child during the application period and the subsequent birth of a second child and valid marriage after the review application was made. The decision was reviewed by the Tribunal.

The legal issues before the Tribunal were whether the applicant had demonstrated a genuine and continuing de facto relationship with the sponsor, and whether the Department had adequately considered all aspects of the relationship in accordance with the Migration Regulations 1994. Specifically, the Tribunal considered the financial, household, and social aspects of the relationship, as well as the nature of the commitment between the parties, in light of the evidence provided, including the birth of children and the passage of time.

The Tribunal reasoned that while the Department had requested further information regarding sponsorship limitations and the de facto relationship, and had not received a response, substantial evidence of the relationship had been provided with the initial application and subsequently. This evidence included joint bank accounts, photos, and birth certificates. The Tribunal noted that the sponsor's previous sponsorship limitation period had passed by the time of the decision. Crucially, the Tribunal found that an interview with the applicant and sponsor should have been conducted prior to the decision being made, particularly given the evidence of the relationship's progression, including the birth of children. 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) visa, specifically clauses 820.211 and 820.221 of Schedule 2 to the Regulations.