Ye (Migration)

The Administrative Appeals Tribunal considered an application for a Partner (Residence) (Class BS) visa, subclass 801, made by the applicant, a citizen of China, who was in a de facto relationship with her sponsor, an Australian citizen. The dispute centred on whether the applicant and her sponsor continued to be in a genuine and continuing de facto relationship at the time of the decision, as required by migration regulations.

The Tribunal was required to determine if the applicant and her sponsor were in a de facto relationship, specifically whether they met the criteria of living together or not living separately and apart on a permanent basis, and whether they had provided sufficient evidence of the financial and social aspects of their relationship, as well as the nature of their household. These considerations were to be made in light of the definition of a de facto relationship under section 5CB of the Migration Act 1958 and the matters set out in regulation 1.09A(3) of the Migration Regulations 1994.

The Tribunal reasoned that to satisfy the requirements for a de facto relationship, the parties must demonstrate a mutual commitment to a shared life, that the relationship is genuine and continuing, that they live together or do not live separately on a permanent basis, and that they are not related by family. In this case, the Tribunal found that the parties were not living together at the time of the Department's decision and were living separately and apart on a permanent basis. Furthermore, there was no evidence presented to demonstrate joint ownership of assets, joint liabilities, or the pooling of financial resources to share day-to-day household expenses. The applicant had also elected not to attend a hearing or provide further evidence, consenting to a decision on the papers.

Consequently, the Tribunal affirmed the decision to refuse to grant the applicant a Partner (Residence) (Class BS) visa, subclass 801, as the applicant had failed to satisfy the essential requirements of the visa.