• cl 820.211(2) and Cl 820.221(1)(a) of Schedule 2 to the Regulations.
• reg 2.03A

MIGRATION - Partner (Temporary) (Class UK) visa - Subclass 820 (Partner) - Australian citizen children of the relationship - shared family household - limited evidence of financial pooling - joint social activities - long term relationship - compelling and compassionate circumstances - decision under review set aside and remitted

Administrative Review Tribunal Act 2024 (Cth), s 106

Migration Act 1958 (Cth), s 65

Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; Schedule 3; rr 1.09, 2.03

Bretag v MILGEA [1991] FCA 582

He v MIBP [2017] FCAFC 206

Paduano v MIMIA [2005] FCA 211

1. This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant applied for the visa on 21 March 2022 on the basis of his relationship with his 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 visa applicant did not satisfy cl 820.211(2)(a) because she was not satisfied that the relationship between the applicant and the sponsor met the definition of spouse or de facto partner in s 5F or s 5CB of the Act.
4. I have considered the information and reasons in the Department's decision record dated 21 December 2022. I have also considered the extensive submissions provided to the Tribunal in support of the application for review since January 2023 until November 2025.
5. I am satisfied that s 106(3) of the Administrative Review Tribunal Act 2024 applies, and the Tribunal may make a decision in this matter without holding a hearing of the proceeding. This is because the only parties to the proceeding are the applicant and the Minister, who is a non-participating party; the decision of the Tribunal is wholly in favour of the applicant; and the issues for determination in the proceeding can be adequately determined in the absence of the parties.
6. The following are the written reasons for which the Tribunal has concluded that the decision under review should be set aside and the matter remitted for reconsideration.

Whether the parties are in a spouse or de facto relationship

1. Clause 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 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 sponsor is an Australian citizen by birth. The applicant claims to be the de facto partner of the sponsor at the time of application and, as the parties married on 6 May 2022, the applicant claims to be the spouse of the sponsor at the time of this decision.
2. I will consider whether the applicant and the sponsor met the requirements for a de facto relationship at the time of application. I will also consider whether the applicant and the sponsor meet the requirements for a spousal relationship at the time of decision.

Were the parties in a de facto relationship at the time of application?

1. '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).
2. 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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

Are the parties in a spousal relationship at the time of decision?

1. 'Spouse' is defined in s5F of the Act, which provides that a person is in a spousal relationship with another person if they are validly married to each other, have a mutual commitment to a shared life as a married coup0le to the exclusion of all others, the relationship is genuine and continuing, and the couple live together, or do not live separately and apart on a permanent basis: s 5F(2).
2. In forming an opinion whether the parties are in a spousal relationship, consideration must be given to all of the circumstances of their relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the parties' household and their commitment to each other, as set out in reg 1.15A(3), which has similar circumstances of the relationship to those set out in reg 1.09A(3).

1. I have applied the principles espoused in Bretag v MILGEA [1991] FCA 582 and have considered the subsequent history of the relationship in determining the existence or non existence of facts relevant to the issues to be determined at the time of application.
2. The Tribunal received detailed statements of the relationship and its circumstances from both the applicant and the sponsor. The Tribunal received a significant number of detailed statements from the sponsor's relatives and friends, including from her mother, older sister, and friend, that attested to the committed and supportive relationship between the applicant and the sponsor. The Tribunal received statements from relatives and friends of the applicant, including from his uncle, as well as from the sponsor's treating doctors, a housemate of the applicant and sponsor, and from friends of both parties. The Tribunal received copies of the birth certificates of the parties' children who were born in December 2022 and July 2025.
3. The Tribunal received documents showing the residential addresses where the applicant and sponsor had resided at four addresses since they started living together in March 2021.
4. The Tribunal received documents relating to the parties' financial circumstances, including the sponsor's Centrelink Parenting Partnered Statement, tenancy agreement, bank statements, utility bills and other expenses.
5. The Tribunal received multiple photos of the applicant and the sponsor and their children at significant family and social events over the last four years.
6. After assessing the evidence provided to the Tribunal, I am satisfied that the applicant and the sponsor first met in March 2019; their de facto relationship commenced in March 2021 when they moved in together; the couple moved to another property in Hoppers Crossing in July 2021; to another property in Tarneit in 2023; and to a fourth property in Aintree in April 2025, where they currently reside with their children and a housemate. I am satisfied that the applicant and sponsor parent their children together and that the families of both the applicant and the sponsor recognise the relationship. I am satisfied that the applicant and the sponsor depend and rely on each other and provide each other with emotional and practical support. I am satisfied that the applicant is seen as part of the family of the sponsor and that the sponsor has developed strong bonds with family, friends and members of the community of the applicant.

Findings on the circumstances of the relationship

1. I am satisfied that the parties do not jointly own real estate or other major assets. I am satisfied that the parties do not have substantial joint liabilities. Both these factors are understandable given their age, so I do not draw any adverse inference from these facts. I am satisfied that the parties have joint liabilities in the form of rent and utilities for their rental property. I am satisfied that the applicant works as a tiler and that the sponsor receives Centrelink parenting payment while she cares for their two young children. I am satisfied that the parties have a joint bank account to which they both have access. The account provided shows receipt of Services Australia payments and payment of bills, but does not show receipt of the applicant's salary, so it does not provide evidence of pooling financial resources or the sharing of day to day household expenses or sharing the management of their finances and financial decisions. There is no evidence that one person in the relationship owes any legal obligation in respect of the other.
2. The evidence of the financial aspects of the relationship indicates that the parties are in a genuine and continuing relationship, at both the time of application and of the time of decision.

1. I am satisfied that the applicant and the sponsor share joint responsibility for the care and support of their two children, with most of the care being undertaken by the sponsor while the applicant is at work. I am satisfied that the applicant and the sponsor share joint responsibility for housework, with most of the housework being undertaken by the sponsor during the day and the applicant sharing responsibility for cooking and childcare in the evenings. I am satisfied that the applicant and sponsor have lived together as a couple since their de facto relationship commenced in March 2021.
2. The evidence of the nature of the household indicates that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others, are in a genuine and continuing relationship, and lived together, and not separately and apart on a permanent basis, both at the time of application and at the time of decision.

1. I am satisfied that the applicant and the sponsor represented themselves to other people as being in a de factor relationship with each other from the time their relationship commenced in March 2021. I am satisfied that the applicant and the sponsor became engaged on 20 February 2021 and that they celebrated this event with their family and friends. I am satisfied that since this time, they have represented themselves to other people, including family, friends, and the community, as being in a de factor relationship. I am satisfied that the opinion of their friends and acquaintances about the nature of the relationship is that it is committed, caring and supportive. I am satisfied that the applicant and the sponsor plan and undertake joint social activities around family social functions, including their children's birthdays, religious celebrations such as Eid, Ramadan and Christmas, and that they are invited to friends' BBQs, parties and other social events as a couple and, with their children, as a family.
2. The evidence of the social aspects of the relationship indicates that the applicant and sponsor have a mutual commitment to a shared life to exclusion of all others, are in a genuine and continuing relationship, and lived together, and not separately and apart on a permanent basis, at both the time of application and at the time of decision.

The nature of the persons' commitment to each other

1. I am satisfied that the evidence of when the parties first resided together and the de facto relationship commenced is not clear. The applicant stated in his application for a partner visa that the de facto relationship began on 30 March 2019 and his representative repeated this claim in her submission of 7 March 2019. I accept that 30 March 2019 is the date when the parties met but I do not accept that this is the date when their de facto relationship began for two reasons. First, the parties have consistently given evidence that they started living together in March 2021. Second, on 30 March 2019, the sponsor was 16 years old, but under Reg 2.03A, both parties to a de facto relationship must be at least 18 years old.
2. I am satisfied that the de facto relationship commenced in March 2021 and that they have been married since 6 May 2022. At the time of application, namely on 21 March 2022, I am satisfied that the parties had resided together for at least eleven months and the duration of the de facto relationship was at least eleven months. At the time of this decision, I am satisfied that the parties have resided together for four years and eight months and have been married for three years and almost six months. Based on their statements over four years, a large number of support letters from family, friends and acquaintances, and the fact that the parties have two children together, I am satisfied that the applicant and the sponsor provide a high degree of companionship and emotional support to each other and that they see their relationship as a long term one.
3. The evidence of the nature of the persons' commitment to each other indicates that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of all others, are in a genuine and continuing relationship, and lived together and not separately and apart on a permanent basis, both at the time of application and at the time of decision.

1. After assessing the circumstances of the relationship, I am satisfied that both at the time of application and at the time of decision the applicant and the sponsor were in a relationship of mutual commitment to a shared life to the exclusion of all others, that their relationship was genuine and continuing, and that they lived together, and not separately and apart, on a permanent basis.
2. I am satisfied that at the time of application the relationship between the applicant and the sponsor met the requirements for a de facto relationship in s 5CB(a)(b) and (c).
3. Further, based on the birth certificate of the sponsor, I am satisfied that she was born in Australia. I have considered the registered marriage certificate that records the place of birth and the names of the parents of both the applicant and the sponsor. The sponsor is thereby an eligible sponsor for the purposes of cl 820.211(2)(a)(i) and cl 820(1)(a).
4. For the purposes of s 5CB(2)(d), s 5CB(4) provides that

Two persons are related by family if: > > (a) one is the child (including an adopted child) of the other; or > > (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or > > (c) they have a parent in common (who may be an adoptive parent of either or both of them).

5. I am satisfied based on the birth certificates and the marriage certificate of the parties that the applicant was born in Jordan and that the applicant and the sponsor are not related by family.
6. Accordingly I am satisfied that the relationship between the applicant and the sponsor meets the further requirement for a de facto relationship in s 5CB(d) at the time of application.
7. Based on the registered marriage certificate, I am satisfied that the applicant and the sponsor were validly married on 6 May 2022. I am satisfied that the applicant and sponsor are married to each other under a marriage that is valid for the purposes of the Act. I am satisfied that the relationship between the applicant and the sponsor meets the requirement for a spouse relationship in s5F(2)(a) at the time of decision.
8. Based on the above assessment of the circumstances of the relationship, I am satisfied that at the time of decision, the relationship between the applicant and the sponsor meets the requirements for a spouse relationship in s 5F(2)(b),(c) and (d).

1. I am satisfied that the applicant was the de facto partner of an Australian citizen at the time of application and therefore he meets the requirements of cl 820.211(2)(a).
2. I have considered the statements of the sponsor provided to the Tribunal. I have considered her identification documents and I am satisfied that she is an Australian citizen who has turned 18. I am satisfied that the applicant was sponsored by his de facto partner who had turned 18 at the time of application. I am therefore satisfied that the applicant meets the requirements of cl 820.211(2)(c).

Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?

1. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl 820.211(2)(d).
2. According to the Department's movement records, the applicant in the present case held a student visa granted on 14 January 2020 which was cancelled on 11 April 2022. The applicant applied for a partner visa on 21 March 2022. Hence at the time of application, the applicant was the holder of a substantive visa so it is not necessary to consider whether he meets certain criteria in Schedule 3 of the Regulations.

Are the additional criteria for a de facto relationship met?

1. 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 applicant and the sponsor were at least 18 years old.
2. The 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 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.
3. There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so the applicant must meet the 12 month requirement. In their written statements, the parties claimed that they met on 30 March 2019, that they then became friends; they started dating; they became engaged on 20 February 2021, and that they moved in together in March 2021. Accordingly, the Tribunal is not satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.
4. Therefore, the issue before the Tribunal is whether the visa applicant can establish compelling and compassionate circumstances for the grant of the visa: reg 2.03A(3). The expression 'compelling and compassionate circumstances for the grant of the visa' is not defined in the legislation. Having regard to the ordinary meaning of the words, 'compassionate' suggests 'circumstances that invoke sympathy or pity'. 'Compelling' in its wide, ordinary meaning means 'forceful' and, therefore, convincing: see Paduano v MIMIA [2005] FCA 211.
5. I am satisfied that there are compelling and compassionate circumstances for the grant of the visa. I am satisfied that the length of the relationship, that is, the parties have now resided together for four years and eight months and have been married for three years and almost six months, is a significant factor. Further, I am satisfied that the parties have two children together, a daughter born in December 2022 and a son born in July 2025. I am also satisfied based on the significant number of statements and letters of support provided to the Tribunal that the sponsor and their children are dependent on the applicant for his ongoing support. I am satisfied that the sponsor and the children would experience significant hardship if the visa was not granted, and that these circumstances amount to compelling and compassionate circumstances for the grant of the visa.
6. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.

1. I am satisfied for the reasons set out above that the applicant continues to meet the requirements in cl 820.211(2) at the time of decision except for the change that the applicant is now the spouse of his partner, the Australian citizen sponsor, and is not her de facto partner.
2. I am therefore satisfied that the applicant meets the criteria in cl 820.221.

1. For completeness, I note that the Departmental file contains a non-disclosure certificate dated 29 November 2023. The Tribunal provided the applicant's representative with a copy of the certificate on 14 November 2025.
2. In the certificate, a delegate notified the Tribunal that the file contained material whose disclosure would be contrary to the public interest because it included allegations which might identify a confidential source of information. The allegations were that the applicant is in a contrived relationship and working cash in hand in breach of visa conditions.
3. I have considered the certificate and the allegations to which it relates. I have concluded that it is not relevant to the applicant's case for the following four reasons: the allegation is anonymous; it is very general; it provides no evidence in support; and the overwhelming evidence before the Tribunal is that the parties were, at the time of application, and continue to be in a genuine and continuing relationship. As a result I have given the allegation no weight in reaching my decision.

1. Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

1. The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
   • cl 820.211(2) and cl 820.221(1)(a) of Schedule 2 to the Regulations; and
   • reg 2.03A

Representative for the Applicant: Ms Joumana El Halwe (MARN: 1388161)

**ATTACHMENT - Extract from Migration Regulations 1994

(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).

(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).

(1) The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

(a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa - 1 September 1994; or

(b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa - the day when the applicant last became an illegal entrant; or

(c) if the applicant:

(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(ii) entered Australia unlawfully on or after 1 September 1994;

(iii) the last day when the applicant held a substantive or criminal justice visa; or

(iv) the day when the applicant last entered Australia unlawfully; or

(d) if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation - the later of:

(i) the day when that last substantive visa ceased to be in effect; and

(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

(a) the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

(b) on 31 August 1994, the applicant was either:

(i) an illegal entrant; or

(ii) the holder of an entry permit that was not valid beyond 31 August 1994;

(c) the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

(d) there are compelling reasons for granting the visa; and

(e) the applicant has complied substantially with the conditions that apply or applied to:

(i) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

(ii) any subsequent bridging visa; and

(f) the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

(g) the applicant intends to comply with any conditions subject to which the visa is granted; and

(h) the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

(a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

(d) there are compelling reasons for granting the visa; and

(e) the applicant has complied substantially with:

(i) the conditions that apply or applied to:

(A) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

(A) the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

(f) either:

(i) in the case of an applicant referred to in paragraph (a) - the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

(ii) in the case of an applicant referred to in paragraph (b) - the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

(g) the applicant intends to comply with any conditions subject to which the visa is granted; and

(h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.