Manzano (Migration) [2023] AATA 4619 (23 November 2023)

Last Updated: 29 February 2024

Manzano (Migration) [2023] AATA 4619 (23 November 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Ms Lucie Catherine Manzano

CASE NUMBER: 1912758

HOME AFFAIRS REFERENCE(S): BCC2017/4673544

MEMBER: Edward Howard

DATE: 23 November 2023

PLACE OF DECISION: Brisbane

DECISION: The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 23 November 2023 at 4:27pm


CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – victim of family violence – relationship ceased – applicant and sponsor were not in a de facto relationship for at least 12 months prior to the date of the application – limited evidence as to the nature of their household and living arrangements – Tribunal makes no finding in relation to whether family violence occurred – applicant does not satisfy the threshold criteria to be in a de facto partner relationship at the time of application– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5CB, 65
Migration Regulations 1994, rr 1.09,2.03, Schedule 2, cls 820.211, 820.221

CASES
Ally v MIAC [2008] FCAFC 49
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Poche (1980) 4 ALD 139

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the review applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The review applicant applied for the visa on 7 December 2017 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
3. The delegate refused to grant the visa on the basis that the review applicant did not satisfy cl 820.221.
4. The review applicant appeared before the Tribunal on 14 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Belinda Kuhlewein, Daniel Kuhlewein, Alice Balle, Benoit Guerville Balle and Marianne Findlay.
5. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

BACKGROUND

6. The review applicant is Lucie Catherine Manzano, aged 32 years, a citizen of France and the sponsor is David Alan Bertram, aged 52 years, an Australian citizen.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, the review applicant claims her relationship with the sponsor has ceased and she has been the victim of family violence. For visa applications made on or after 9 November 2009, the Regulations explicitly require family violence to have occurred when the partner or spousal relationship was still in existence. If the Tribunal is not satisfied that a partner or spousal relationship existed, the family violence exception to the continuing relationship requirement will not be available: r.1.23.
8. Therefore, the issues in the present matter concern whether the review applicant was in a partner relationship with the sponsor at the time of the visa application, and whether she may avail herself of the ‘family violence’ exception to the requirement to have maintained the partner relationship at the time of this decision.

ISSUES AND LAW

9. There is a two-stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.
10. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.09A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.^[1]
11. The issue in the present case is whether at the time of the visa application and the time of this decision, the review applicant is the de facto partner of the sponsor.

Whether the parties are in a spouse or de facto relationship

12. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the review applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the review applicant claims to be the de facto partner of the sponsor who is an Australian citizen.

Are the parties in a de facto relationship?

13. 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).
14. In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
15. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the review applicant and the sponsor were at least 18 years old.
16. The review applicant must have been in the de facto relationship for at least the 12-month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the review applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.
17. In the present case, the review applicant must satisfy the Tribunal that she had been in the de facto relationship since at least 7 December 2016, which is 12 months prior to the lodgement of the visa application on 7 December 2017.
18. The Application for Migration to Australia by a Partner (‘the Application’) was lodged by the review applicant and sponsor on 7 December 2017. It refers to the de facto relationship between the parties as commencing on 1 November 2017. As the relationship length did not meet the required 12 month minimum prior to lodgement of the visa, the Application document requested the parties provide details of any compelling and compassionate circumstances to be considered with the application.
19. The parties wrote a statement in response, signed in both names, although it is written in the first person by the review applicant. The statement says that the parties’ intimate sexual relationship only began on 1 November 2017 and that they committed to a de facto relationship on that same day, that is, 37 days prior to the visa application being lodged.
20. Despite the contemporaneous assertion in the Application that the date of commencement of the de facto relationship was 1 November 2017, the review applicant gave evidence at the Hearing and in her signed statement of 14 November 2023, that her and the sponsor were in a de facto relationship from more than 12 months prior to the date referred to in the Application.
21. When the contents of the statement in the Application were raised with the review applicant in the Hearing, her evidence was that the sponsor was very concerned that Centrelink would reduce his disability pension if he declared he was in a de facto relationship. The evidence was as follows:

Q: You’re saying you dated it to November 2017, the physical relationship, because of his concerns about his pension being paid by Centrelink, is that the reason?

A: I’m guessing it was the reason because we had a lot of discussion around that and it was a very sensitive subject. It was an ongoing concern for him and it showed up in random moments in our life together. I don’t recall the document, I do recall part of it, and I’m guessing it was the only reason I submitted the letter.

Q: ...it doesn’t take away from at the time, you put in November 2017 and then you put in the explanation as to why it was November 2017.

A: Yes, I understand that.

22. In giving reasons in the statement as to why their commitment only took place on 1 November 2017, the Application refers to the fact that the review applicant states that she:

- “could not risk my friendship with David by adding a sexual dimension to it”,

and that the sponsor,

-“was reluctant to be in a serious relationship with another woman after Maria”,

referring to the sponsor’s divorce from his ex-wife.

23. The statement given by the parties in the Application form provides the Tribunal with a contemporaneous record at the time of lodging the visa application. The Tribunal prefers this contemporaneous evidence over the more recent evidence of the review applicant that attempts to place the commencement of a de facto relationship some 12 months or more prior. The Tribunal finds that the evidence given by the review applicant at the Hearing, in relation to this issue, was inconsistent, evasive, unhelpful and vague. In this regard, the Tribunal finds the review applicant to not be a truthful or credible witness.
24. The review applicant must satisfy the Tribunal that she had been in a de facto relationship for at least the period of 12 months ending immediately before the date of application. In view of the above evidence, the Tribunal finds that the review applicant and sponsor were not in a de facto relationship for at least 12 months prior to the date of the application, being 7 December 2017. The Tribunal does not consider that there is evidence of compelling and compassionate circumstances for the grant of the visa and therefore the review applicant does not satisfy Reg 2.03A(3).

Are the other requirements for a spouse relationship met?

Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

25. The evidence of the review applicant is that she was initially employed as a farmworker on a pineapple farm after her arrival in Queensland in about June 2016.
26. The review applicant’s evidence was that after she left working at the pineapple farm she started working and living at the sponsor’s residence. Her evidence is that for a period of time she undertook work exchange for the sponsor, where she would undertake house maintenance and various other duties in exchange for food and accommodation. She now claims that a relationship commenced shortly after her arrival at the sponsor’s property. She states that at this time she stopped doing work exchange and helped the sponsor look after guests who were undertaking work exchange themselves or using the Airbnb facilities at the property.
27. The evidence before the Tribunal is that the sponsor received Centrelink entitlements for a disability pension as well as income from Airbnb facilities on his property. The sponsor paid all bills including regular costs such as food and petrol. The review applicant stated that she only paid bills on a few occasions. The review applicant stated that the parties established a joint account with Heritage Bank. In relation to this account, her evidence was as follows:

Q: What money was in that account? Do you know?

A: I’ve got no idea.

Q: Do you remember who put the money in there or what was there to start with?

A: I’m guessing it was my partner, I cannot recall if we both put money there. If yes, it would be on the bank statement, but I really can’t remember today about that.

Q: Sure, and how regularly did you use that card to pay for things?

A: I don’t think I used that card to be honest. I think I never used it. I had it but I never used it.

Q: Okay so you never had a reason to access the account yourself?

A: No.

Q: And do you recall whether or not there was online access, did you ever go online and were able to see what transactions were going on or anything like that?

A: Yes, I think when we went to the bank, they explained to us how to set up our account. I’ve never been online; I don’t even check my own bank accounts [now] to be honest...my mind was not on having clarity on what was happening on the account. I don’t do that on my own account to be honest, it’s not in my habit.

28. The parties each had a vehicle which they owned themselves. As far as the review applicant was aware, the residential property was owned by the sponsor. The review applicant did not know if there was a mortgage over the property or of any other bank loans or encumbrances. The parties had no jointly owned assets or joint liabilities.
29. In her evidence, the review applicant refers to her contribution to the household and the sponsor’s business ventures through assistance with guest management, tours, food processing, cooking, cleaning and creation and maintenance of a three-level rooftop vegetable garden.
30. The review applicant states that the sponsor’s financial dealings were structured around his businesses and that he declared most outgoings as business expenses to minimise tax liabilities. She states that traditional evidence such as joint bank statements do not reflect the extent of her financial integration into the household.
31. Having carefully considered all of the evidence, including the supporting evidence of the oral witnesses and signed statements, the Tribunal accepts that the review applicant lived and worked on the sponsor’s property and undertook work for the sponsor including the maintenance of his property, assisting with guests, cooking, cleaning and maintenance of the vegetable garden. However, the Tribunal is of the view that this work reflects the work exchange arrangement between the review applicant and the sponsor.
32. The Tribunal finds that in relation to the financial aspects of the relationship, the parties did not have joint ownership of real estate or any major assets. They did not have joint liabilities or joint financial responsibility for outgoings or regular commitments. There is no evidence of the pooling of resources. There is no evidence before the Tribunal of any genuine financial relationship between the parties at the date of application or subsequently.
33. The Tribunal is not satisfied that the financial arrangements are consistent with the financial situation of a committed and genuine partner relationship. The Tribunal places limited weight on the financial aspects of the relationship.

Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

34. The recent evidence of the review applicant (at Hearing and by statement) was that she and the sponsor began a relationship in about July 2016, after the review applicant commenced living on the sponsor’s property. The evidence of the review applicant is that she lived with the sponsor on his property and that she carried out many of the household chores and maintenance duties.
35. However, in the visa Application, completed on 7 December 2017, the review applicant and the sponsor jointly stated that their de facto relationship commenced on 1 November 2017. In the Application they explained that they had lived at the sponsor’s residence for more than a year and had been:

‘supporting each other in our struggles having strong connections even though we had never been sexually intimate’.

36. They then go on to explain that the review applicant felt she:

‘could not risk my friendship with David by adding a sexual dimension to it and David was reluctant to be in a serious relationship with another woman after Maria’, (a reference to his ex-wife).

37. A number of friends and acquaintances of the review applicant have provided statements and/or gave oral evidence to the Tribunal.
38. Ms Alice Balle, has known the review applicant for approximately 12 years, when they first met at university. They have remained in contact over this period of time. After completing their studies together in 2015, the review applicant has spent two periods of time with Ms Balle. Firstly, in October 2016, when the review applicant travelled to Japan for two weeks to visit Ms Balle and her partner, Mr Benoit Guerville Balle.
39. Ms Balle’s evidence is that she was informed by the review applicant in about September 2016 that she had commenced a relationship with the sponsor. Her evidence was that during the visit by the review applicant to Japan in October 2016, she noticed, via his communications, that the sponsor showed signs of jealousy concerning the review applicant and her possible interaction with other people, especially other males. Ms Balle’s evidence was that she considered that the sponsor was ‘controlling her from Australia’. Her evidence was that the review applicant had to ‘justify everything to him’. Ms Balle claims that she and her partner were very concerned about the review applicant and booked a hotel room for her to stay in upon her return to Australia so that she could have time to herself. Ms Balle never spent time together with the review applicant and sponsor.
40. Mr Benoit Guerville Balle is the partner of Ms Alice Balle and has known the review applicant since approximately 2011/2012. He recalls the review applicant visiting him and his partner in Japan in October 2016 and telling them about the problems in her relationship with the sponsor. They had booked and paid for a hotel room for the review applicant to stay in upon her initial return to Australia in order to “regain a clear mind”.
41. An email was received by Ms Marianne Findlay dated 7 November 2023. Ms Findlay also provided a statutory declaration sworn 18 October 2018. Ms Marianne Findlay first met the review applicant in about March 2016, a few months after the review applicant arrived in Australia. The review applicant stayed with Ms Findlay at her property in Victoria until about June 2016. Ms Findlay gave evidence that the review applicant carried out work on her property in exchange for food and accommodation. Since that time, they have kept in contact by phone or message apps.
42. Ms Findlay met the sponsor on only one occasion while she was visiting Queensland in about September 2016. She states that spent an afternoon with the sponsor and review applicant at Rainbow Beach in Queensland. The extent of Ms Findlay’s personal engagement with the parties together was limited to this afternoon at Rainbow Beach.
43. Ms Findlay stated that in about February 2017 the review applicant contacted her suffering from what she described as “extreme stress”. She invited the review applicant to come and stay with her in Victoria, which she did for a period of approximately 5-6 days in February 2017. Ms Findlay states that she observed the review applicant to be stressed and that she described to her an incident of pressured sexual contact with the sponsor. Her observation was that this was having a significant impact on the review applicant.
44. Belinda Kuhlewein gave evidence on behalf of the review applicant. She first met the review applicant approximately 5 to 6 years ago. Ms Kuhlewein is an artist, and the review applicant would model for her and would attend creative photo shoots with her. On a number of occasions, she and her husband met with the review applicant and the sponsor to carry out these photo shoots. On occasions, her husband would spend time with the sponsor whilst the photo shoots may take the entire day or even weekend. Ms Kuhlewein stated that initially, she observed a “beautiful relationship” but that the review applicant was a private person, and she did not know the extent of any problems in the relationship until the review applicant “reached out for help”.
45. Mr Daniel Kuhlewein also knew the review applicant and the sponsor, through his wife’s professional contact with the review applicant. As noted above, he spent time with the sponsor during the photo shoot sessions. He stated that he initially observed a happy couple who were “getting along fine”. At a later time, he observed some trouble in the relationship and the review applicant started to attend photo sessions on her own, without the sponsor.
46. Ms Justine Tardy provided a statement dated 9 November 2023. It is referred to as a statutory declaration, although there is no evidence of the document being sworn or affirmed in the presence of a qualified witness. In the statement, Ms Tardy refers to staying at the sponsor’s property and undertaking some work in the local area. Her recollection is that she and her partner performed this work exchange for the sponsor in about July 2016 wherein they worked for two weeks and then he took them on a guided tour of Fraser Island. She states that she “saw Lucy and Dave were sleeping together”, although she does not elaborate on this statement.
47. Mr Benjamin Gall provided a statement, dated 9 November 2023 and as with Ms Tardy there was no evidence of the document being sworn or affirmed in the presence of a qualified witness. Mr Gall stated that he and his partner, also did work exchange for the sponsor in October 2016, after which time the sponsor took them on a boat trip to Fraser Island where they stayed for three days. His recollection is that they were at the sponsor’s property for a total of 10 to 15 days. His statement refers to his observation that the parties were sleeping together as he had witnessed them “going to bed at the same time” and that they “showed signs of complicity and affection from time to time like kisses and hugs.”
48. The Tribunal has carefully considered the evidence, both oral evidence and statements, of friends and acquaintances of the review applicant. The Tribunal notes in particular that the statements of Ms Tardy and Mr Gall which were sworn just five days prior to the hearing, are relatively brief, lack specificity and relate to a short period (10-15 days) which occurred more than seven years ago, during which they each spent time with the parties. The Tribunal notes that none of the other witnesses ever visited or resided with the parties at the sponsor’s property. The Tribunal gives this evidence some weight.
49. Having carefully considered all the evidence, the Tribunal is of the view there is no persuasive evidence of the nature of their household or that the parties lived together as a de facto couple. Whilst there is evidence of the fact that the parties resided in the same property, it is not evidence that they shared the household of a de facto couple or of the living arrangements of parties in a genuine de facto relationship. Whilst the parties shared household duties and chores, there is no persuasive evidence that they had living arrangements consistent with that of a genuine and committed de facto relationship. The Tribunal places limited weight on the household aspects.

Social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

50. The parties have provided a small number of photographs showing them together and in the company of some friends or acquaintances. Some of these photos are exhibited to the statements of people who stayed at the sponsor’s residence for limited periods of time (approximately 2 weeks), in July 2016 and October 2016. They are mainly photographs of the parties engaging with guests at the sponsor’s property or on trips to Fraser Island or similar outings.
51. The statements provided by visitors to the sponsor’s property referred to their observations that the parties showed affection to each other and spent time in each other’s company and references to the parties being in a sexual relationship or sleeping together. However, as discussed above, this is expressly contradicted by the evidence of the parties themselves in their application for the visa.
52. The Tribunal finds that there is no persuasive evidence that the parties represented themselves to other people as being in a committed de facto relationship. The Tribunal places limited weight on the social aspects of the relationship.

Nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

53. The oral evidence of the review applicant is that the parties met in June/July 2016 and that they commenced an intimate relationship shortly thereafter and lived as a de facto couple on the sponsor’s property. However, in the Application for a partner visa of 7 December 2017, the review applicant asserted that their de facto relationship commenced on 1 November 2017 and that this was also the date upon which an intimate sexual relationship commenced.
54. In the Application, the parties expressly refer to the date of 1 November 2017 as being the commencement of their physical relationship and describe themselves as having never been in a sexually intimate relationship until that time. In this regard, the Application refers to the review applicant not wanting to “risk my friendship with David by adding a sexual dimension to it” and that the sponsor was “reluctant to be in a serious relationship with another woman” following the divorce from his ex-wife. The Tribunal considers these factors to represent a contemporaneous explanation by the parties as to why they only commenced a serious relationship in November 2017.
55. The statement given by the parties in the Application form provides the Tribunal with a contemporaneous record at the time of lodging the visa application. The Tribunal prefers this contemporaneous evidence over the more recent evidence of the review applicant that attempts to place the commencement of a de facto relationship some 12 months or more prior. The Tribunal finds that the evidence given by the review applicant at the hearing in relation to this issue was inconsistent, evasive, unhelpful, and vague. In this regard, the Tribunal finds the review applicant to not be a truthful or credible witness.
56. The review applicant’s evidence is that the relationship deteriorated due to acts of family violence by the sponsor and the review applicant left the sponsors residence in about October 2018.
57. There is limited evidence before the Tribunal of any financial relationship between the parties and the Tribunal is not satisfied that the financial arrangements are consistent with the financial situation of a committed and genuine relationship.
58. Further, there is limited evidence as to the nature of their household and living arrangements consistent with that of a genuine and committed de facto relationship. There is no persuasive evidence of the nature of their household or that the parties lived together as a de facto couple. Whilst there is evidence of the fact that the parties may have resided in the same property, it is not evidence that they shared the household of a de facto couple or of the living arrangements of parties in a genuine de facto relationship.
59. The Tribunal, having carefully considered all of the evidence in relation to the nature of the commitment in the relationship, concludes that the degree of companionship and emotional support the parties drew from each other was minimal. The Tribunal is not satisfied that the parties had a mutual commitment to a shared life to the exclusion of all others, or that the nature of the parties’ commitment to each other was consistent with a genuine and continuing de facto relationship.

Overall Conclusions

60. The Tribunal has considered separately and as a whole, the evidence before it regarding each of the prescribed matters under r. 1.09A, that is, the financial, household, social and commitment aspects of the relationship.
61. In forming a view, the Tribunal is mindful of the authority in ² Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].
62. Having regard to the above matters, the Tribunal is not satisfied the review applicant and sponsor had a mutual commitment to a shared life as a de facto couple to the exclusion of all others, or that the relationship between them was genuine and continuing, at the time of the visa application. The Tribunal is therefore not satisfied that the requirements of s.5CB(2) of the Act were met at the time of the visa application.
63. Given these findings, the Tribunal is not satisfied that at the time the visa application was made the parties were in a de facto partner relationship as defined in the Act. Therefore, the review applicant does not meet the criterion in cl.820.211(2)(a). The Tribunal notes the applicant contends she suffered family violence during the relationship and has tendered evidence to support a claim of judicially determined family violence. However, given the Tribunal’s conclusion in relation to cl.820.211(2)(a), there is no need for it to make a finding on the family violence issue at the time of decision. Indeed, the relevant de facto relationship must have existed at the time of application before it can be determined that it has ceased on account of family violence. Accordingly, the Tribunal makes no finding in relation to whether family violence occurred in the review applicant’s case as it has found she does not satisfy the threshold criteria to be in a de facto partner relationship at the time of application.
64. For the reasons above, the review applicant does not satisfy the criteria for the grant of the visa.

DECISION

65. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Edward Howard
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.09A De facto partner and de facto relationship

(1) For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.

Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.

Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.

(2) If the Minister is considering an application for:

(a) a Partner (Migrant) (Class BC) visa; or

(b) a Partner (Provisional) (Class UF) visa; or

(c) a Partner (Residence) (Class BS) visa; or

(d) a Partner (Temporary) (Class UK) visa;

the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

(3) The matters for subregulation (2) are:

(a) the financial aspects of the relationship, including:

(i) any joint ownership of real estate or other major assets; and

(ii) any joint liabilities; and

(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and

(iv) whether one person in the relationship owes any legal obligation in respect of the other; and

(v) the basis of any sharing of day to day household expenses; and

(b) the nature of the household, including:

(i) any joint responsibility for the care and support of children; and

(ii) the living arrangements of the persons; and

(iii) any sharing of the responsibility for housework; and

(c) the social aspects of the relationship, including:

(i) whether the persons represent themselves to other people as being in a de facto relationship with each other; and

(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

(iii) any basis on which the persons plan and undertake joint social activities; and

(d) the nature of the persons’ commitment to each other, including:

(i) the duration of the relationship; and

(ii) the length of time during which the persons have lived together; and

(iii) the degree of companionship and emotional support that the persons draw from each other; and

(iv) whether the persons see the relationship as a long term one.

(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

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^[1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].