Tsui (Migration)

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by a 52-year-old Hong Kong national sponsored by a 77-year-old Australian citizen. The central dispute was whether the applicant and sponsor were in a genuine and continuing de facto relationship as defined by section 5CB of the Migration Act 1958 (Cth). The Tribunal was required to consider all circumstances of the relationship, including financial, household, social aspects, and the nature of their commitment to each other, as outlined in regulation 1.09A(3) of the Migration Regulations 1994.

The legal issues before the Tribunal were whether the applicant and sponsor met the criteria for a de facto relationship under section 5CB(2) of the Act, specifically whether they had a mutual commitment to a shared life to the exclusion of all others, that the relationship was genuine and continuing, that they lived together or did not live separately and apart on a permanent basis, and that they were not related by family. The Tribunal was directed to consider the financial aspects, including joint ownership of properties, the nature of their household, social aspects, and the duration and nature of their commitment to each other.

The Tribunal considered evidence of joint ownership of two properties, acquired in 2015, and noted that while the sponsor purchased both properties, the applicant made no financial contribution. The parties commenced cohabitation on 1 December 2014, and the visa application was lodged on 30 June 2016. The Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant met the criteria for the Subclass 820 visa, implying that further consideration of the relationship's aspects was necessary to satisfy the legislative requirements.