Tracey (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, subclass 801. The applicant, an Irish national, claimed to be the de facto partner of an Australian citizen. The Tribunal was required to determine whether the parties were in a genuine and continuing de facto relationship for the purposes of the *Migration Act 1958* (Cth).

The legal issues before the Tribunal were whether the applicant and the sponsor were in a de facto relationship as defined by section 5CB of the Act, and whether this relationship was genuine and continuing. This required consideration of all the circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.09A(3) of the *Migration Regulations 1994*. The Tribunal was also required to apply the principles established in *Bretag v MILGEA* [1991] FCA 582 regarding the genuineness and continuity of such relationships.

The Tribunal considered evidence including documentation and oral testimony from the applicant, sponsor, and witnesses. It applied the definition of a de facto partner, which requires a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, cohabitation or not living permanently apart, and no familial relationship. The Tribunal was satisfied that the parties were in a de facto relationship valid for the purposes of the Act. However, the decision notes that a decision-maker is not obliged to accept all assertions and may form an opinion that a factual assertion is not made out without necessarily having rebutting evidence.

Given its findings, the Tribunal remitted the application for a Partner (Residence) (Class BS) visa for reconsideration by the Minister, with a direction that the applicant met the criteria specified in cl.801.221 of Schedule 2 to the Regulations.