Ye (Migration)

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801. The applicant, who arrived in Australia in 2009, lodged a combined application for Subclass 820/801 visas in December 2014 and was granted a Subclass 820 visa in July 2016. The sponsor is an Australian permanent resident. The core dispute revolved around whether the relationship between the applicant and the sponsor continued to meet the definition of a de facto relationship as defined in section 5CB of the Migration Act 1958 (Cth). The Tribunal considered the matter under the direction of Member Christine Kannis.

The legal issues before the Tribunal were whether the applicant and the sponsor were in a genuine and continuing de facto relationship, and whether they lived together or did not live separately and apart on a permanent basis, as required by section 5CB(2) of the Act. The Tribunal was required to consider all the circumstances of the relationship, including financial, household, and social aspects, as well as the nature of the parties' commitment to each other, pursuant to regulation 1.09A(3) of the Migration Regulations 1994. The Tribunal also had to consider the validity of statutory declarations made by the parties in 2016, which the original delegate had found to be problematic due to their verbatim nature and use of pronouns, undermining their integrity.

The Tribunal reasoned that while the original delegate had raised concerns about the statutory declarations, the applicant had provided an affidavit explaining that these were prepared by a migration agent based on instructions given in Chinese, and she now considered the agent to have provided a very poor service. Crucially, the Tribunal had before it significantly more information than was available to the delegate, including further affidavits, bank statements, statutory declarations, and photographs. The Tribunal noted that the sponsor had resided in Melbourne for extended periods since 2017 due to family law proceedings, and that the parties had experienced periods of living apart for family reasons and due to COVID-19 travel restrictions. Despite these periods of separation, the Tribunal found that the applicant met the criteria under clause 801.221(2)(c) of Schedule 2 to the Regulations.

The Tribunal concluded that the appropriate course was to remit the application for reconsideration by the Minister, with a direction that the applicant meets the criteria under clause 801.221(2)(c) of Schedule 2 to the Regulations.