• AGL gas account in name of applicant - invoice issued 29 September 2023 - address - Gordon Avenue.
• Optus mobile phone account in name of applicant - invoice issued 10 November 2023 - address - Edinburgh Crescent, St Andrews, NSW.
• AFP National Police Certificate - issued 20 May 2019.

1. Information provided by the applicant in association with the visa application contends that the applicant and sponsor (hereafter, when referred to collectively, referred to as the parties) met on 1 December 2012 whilst both working at a Pizza Hut restaurant in Minto, NSW. It is contended that their friendship developed whilst both were going through separation from their respective previous partners and that they made a commitment to a shared life together to the exclusion of all others on 1 July 2013.[1]
2. On 25 July 2019 the Department wrote to the applicant providing information regarding Schedule 3 criteria relevant to partner visa applications and invited comment regarding the circumstances that led him to become a person who is not the holder of a substantive visa and information relating to any compelling reasons which apply to his case. No response was received to this invitation, or to similar invitations to comment sent to the applicant on 2 September 2019.
3. In detailing the reasons for their decision to refuse the application for a Subclass 820 Provisional Partner visa (Partner visa) the delegate, in their decision record, noted the applicant's lack of response to natural justice letters inviting submissions regarding the Schedule 3 criteria. The delegate noted that whilst information uploaded onto the applicant's ImmiAccount on 19 June 2018, in which he claimed to have a child of his relationship with his sponsor and that his sponsor was pregnant with their second child, no supporting evidence to support these claims were provided. On the basis of their consideration of the information available to the Department, the delegate found that the applicant did not satisfy the requirements of 820.211(2)(a) and 820.211(2)(d) or any of the alternative provisions within regulation 820.211.
4. On 6 December 2023, the applicant was granted a Bridging visa in association with the judicial review in relation to his application for the Partner visa which was underway at that time. The Tribunal notes that Condition 8101 - No Work was attached to this visa. The applicant, without success, sought the removal of this visa condition.[2]
5. Documentation provided to the AAT and Tribunal in association with the review application includes but is not limited to the following:
   • Copies of documents provided to the Department:
     1. AFP National Police Certificate - issued 20 May 2019.
     2. Coles car insurance - correspondence dated 23 August 2019 - regarding `car insurance policy held by applicant - correspondence address Wheatley Drive.
     3. Woolworths car insurance - correspondence dated 20 September 2019 - regarding a car insurance policy held by applicant - correspondence address Wheatley Drive.
     4. NSW Births, Deaths and Marriages - Birth Certificate for Aria [details provided] - date of birth [details provided] October 2016 - issued 3 May 2019.
     5. NSW Births, Deaths and Marriages - Birth Certificate for Alexandria [details provided] - date of birth [details provided] June 2018 - issued 3 May 2019.
     6. Sponsor statutory declaration dated 4 May 2019.
   • Applicant written statement regarding circumstances of late lodgement of review application.
   • Travel records - flight details regarding trip by applicant and sponsor to India between 14 July 2016 and 30 July 2016.
   • Photographs: undated and without explanation of context (duplicate copies not counted):
     1. Showing applicant and sponsor x 7
     2. Showing applicant with daughters x 7
     3. Showing applicant daughters and sponsors elder daughters x 2
     4. Showing applicant and sponsor in social restaurant setting - x 1
   • Bank transaction receipts - funds transferred from applicant to sponsor:
     1. $330 on 16 August 2025 with descriptor 'Aria and Lexi'.
     2. $330 on 23 August 2025 with descriptor 'Aria and Lexi'.
     3. $250 on 30 August 2025 with descriptor 'Aria and Lexi'.
     4. $250 on 7 September 2025 with descriptor 'Aria and Lexi'.
     5. $250 on 14 September 2025 with descriptor 'Aria and Lexi'.
     6. $250 on 21 September 2025 with descriptor 'Aria and Lexi'.

1. $250 on 27 September 2025 with descriptor 'Aria and Lexi'.
2. $250 on 5 October 2025 with descriptor 'Aria and Lexi'.

• AGL telecommunications and electricity accounts issued in September and November 2023 - providing the Gordon Avenue address.
• Optus tax invoice issued 10 November 2023 - providing an address for the applicant in Edinburgh Crescent, St Andrews, NSW.
• Witness support statement from Inderjit Singh Virk dated 15 September 2025.
• Witness support statement from Kawaljeet Kaur dated 18 September 2025.
• Applicant written statement dated 21 September 2025.

1. On 3 September 2025, the Tribunal issued a Direction, pursuant to s 79(1) of the Administrative Review Tribunal Act 2024 that on or before 22 September 2025, the applicant is to complete and return a 'Genuine and continuing relationship request form. The applicant returned this form on 22 September 2025 and in it stated that:
   1. he was still in a de facto relationship with the sponsor.
   2. there were children from the relationship with the sponsor.
   3. there is no other information that he wished to provide to the Tribunal.

1. The issues in the present case include whether the applicant:
   1. was at the time of application in a de facto relationship with the sponsor; if so,
   2. whether the applicant held a substantive visa at the time of his application or had applied within 28 days of the day his last substantive visa ceased; and, if not,
   3. whether there are compelling reasons for not applying the Schedule 3 requirements; if so,
   4. does the applicant continue to be in a de facto relationship with the sponsor at the time of decision; if not,
   5. whether the applicant satisfies the "child exemption" in cl.820.221(3)(b)(ii).

Whether the parties are in a spouse or de facto relationship

1. Clause 820.211(2)(a) requires 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 applicant claims to be the de facto partner of the sponsor who is an Australian citizen.

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.

1. The Tribunal considered the financial aspects of the relationship in so far as the reflect on circumstances around the time of application in April 2018. With respect to those circumstances and on the basis of the applicant's evidence at hearing and that available in documentation before it the Tribunal finds that there was: no joint ownership of assets; no joint liabilities; no legal obligations owed to the other party. At hearing the applicant gave evidence that the sponsor continues to own property assets jointly with her ex-husband. The applicant indicated that he has also in recent years purchased property in his own name.
2. As to the extent of pooling of financial resources and the basis upon which there was sharing of day-to-day household expenses, the applicant has indicated that he and the sponsor shared financial burdens and that he contributed to the care of his first born child.[3] In a statutory declaration sworn on 19 June 2018 applicant declared that the sponsor was not working and was dependent upon his income to meet regular household expenses. Her reliance on the applicant's income to meet family expenses is attested to by the sponsor in a statutory declaration sworn by her on 4 May 2019. The parties gave consistent evidence that in more recent times the sponsor has secured employment as a disability support worker.
3. The applicant gave evidence at hearing that he has been employed for the past five years as a warehouse supervisor, with a net weekly income of around $1,100. He indicated that whereas the parties opened a joint account early in their relationship, this account was closed in or around 2017. The applicant gave oral evidence that he transfers $250 per week to the sponsor, as his contribution towards the cost regular expenses, especially those pertaining to their daughters. Transactions receipts provided in support of the review show fund transfers consistent with the applicant's claims over the August 2025 to October 2025 period. There is no documentary evidence regarding funds transferred to the sponsor by the applicant at earlier periods.
4. A car insurance policy taken out in the applicant's name in August 2019 identifies the sponsor as the driver of the vehicle covered by this policy.[4] A policy taken out in September 2019 to cover a different vehicle was taken out in both the applicant and sponsor's name.[5]
5. Whereas there is limited probative evidence regarding the financial aspect of the parties' relationship at the time of application, there is indication in the Departmental file that the applicant sought and was granted work rights around that time and the Tribunal accepts he was working in paid employment and making contributions towards regular household expenses.
6. The Tribunal is also satisfied that the sponsor would have been receiving family payments in relation to her existing child from her relationship with the applicant and may also have had further entitlements to income support from the Commonwealth. For this reason, the Tribunal is satisfied there would also have been around the time of application a degree of pooling of financial resources between the applicant and sponsor.
7. Upon considering these factors, the Tribunal is satisfied that the financial aspects of the parties' relationship around the time of application in April 2018 support a finding that they at that time were not inconsistent of those of a couple in a de facto relationship.

1. The Tribunal has considered the nature of the parties' household - including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.
2. There are two children from the parties' relationship, the elder of which was born in 2016, well prior to the time of application. The parties gave evidence that the applicant has involvement in the care of this child and their younger child born in June 2018.
3. Information on the visa application states that at the time of application in April 2018, the parties were not residing together in a shared household on an ongoing basis. It is stated in the visa application that this was due to the sponsor's ex-husband not being comfortable with a man he did not know residing in a household with his two daughters. It was contended that the applicant stayed over in the sponsor's home on weekends, when her two elder daughters were staying with their father, her ex-husband.[6] At that time it was contended that the parties were hoping to move together to a bigger home as the sponsor was pregnant with their second child and the sponsor's ex-husband was reported to be coming to terms with the applicant.
4. At hearing the applicant gave oral evidence that he has not shared a household with the applicant since the domestic violence incidents resulting in the AVO and his criminal convictions in 2021 and 2022. The parties gave oral evidence at hearing that the applicant visits the sponsor's home to spend time with her and their daughters and that he is on occasion involved in the children's afterschool care and sporting activities.
5. The applicant gave evidence that he was unable to reside at the same location as the sponsor after the AVO was set in place as the AVO prevented him being within proximity of the sponsor's father, who was identified as the protected person and with whom the sponsor was residing. Of interest, the applicant also gave evidence that the sponsor and her father stopped residing at the same location a few years ago, however no specific dates were forthcoming as to when their cohabitation ceased, or why the applicant did not move back in with the sponsor after she stopped cohabiting with her father.
6. Regarding his residential history following the AVO the applicant gave oral evidence at hearing he resided with the sponsor and their children at the Wheatly Drive address until in or around May 2022, at which time he moved to a friend's home in Albury Place, Airds, NSW. He stayed at this address until around July 2022. He then moved to an address in Atchison Road, Macquarie Fields, NSW and lived in a shared household there for a few years, before moving to an address in Allard Place, Ingleburn, NSW in 2023. The applicant then moved in with a friend and her father at an address in Gordon Avenue, Ingleburn, NSW (Gordon Avenue) where he remains to the current day.
7. The Tribunal has reviewed postal and residential address information which has been provided by the applicant, by way of forms, applications and correspondence evidence. This material provides the following information:
   • A birth certificate issued in October 2016 identifies an address in Whipbird Avenue, Ingleburn, NSW (Whipbird Avenue) for both the applicant and sponsor.
   • At the time of application in April 2018, the applicant and sponsor both provided Whipbird Avenue as their address on the Partner visa application form.
   • A further birth certificate issued in June 2018 provides Whipbird Avenue as the address for the sponsor, but identifies an address in Atchison Road, Macquarie Fields, NSW for the applicant.
   • A statutory declaration sworn by the applicant on 19 June 2018 provides the Whipbird Avenue address as his place of living.
   • An AFP National Police Certificate dated 18 October 2018 regarding the sponsor is addressed to her at the Wheatly Drive address.[7]
   • Statutory declarations sworn by the applicant on 4 May 2019 and an AFP National Police Certificate dated 20 May 2019 regarding the applicant is addressed to him at Wheatly Drive.
   • A Coles car insurance policy issued to the applicant on 23 August 2019 is addressed to him at Wheatly Drive, as is a separate Woolworths car insurance policy issued on 20 September 2019.
   • When applying on 29 October 2019 to the AAT for a review of the visa refusal decision the applicant provided Wheatly Drive as his address.
   • In relation to application for Bridging visas lodged on 20 May 2020, 26 August 2020 and 3 September 2020 the applicant provided Wheatly Drive as his address.
   • Further applications for Bridging visas dated 4 December 2023 and 6 December 2023 provide Gordon Avenue as the applicant's address.
   • Gordon Avenue is also provided as the applicant's address an AGL telecommunications and electricity accounts issued in September and November 2023. The latter electricity account provides usage data for the January 2023 to November 2023 period, so it would appear the address was relevant to this address since at least January 2023.
   • An Optus tax invoice issued 10 November 2023 provides an address for the applicant in Edinburgh Crescent, St Andrews, NSW.
8. In assessing the aforementioned documentary evidence and the parties' oral evidence at hearing, the Tribunal is of the view that the sponsor was residing with her children at the Whipbird Avenue address with the applicant spending time at this location intermittently but primarily living in a different household. It is likely the parties established a household together at the Wheatley Drive address, along with their children and the sponsor's father in the second half of 2018. The Tribunal finds that whereas the applicant may have continued to use Wheatley Drive as a postal address, he moved from this address in or around the latter part of 2021 or early part of 2022. The Tribunal finds that the applicant and sponsor have not shared household arrangements since latter part of 2021 or early part of 2022. The Tribunal finds that since January 2023 the applicant has resided in a shared household he established with a friend and her father.
9. Photos provided in association with the visa and review applications show the applicant in the company of the sponsor and also in the company of the parties two children. When asked at hearing about a sample range of these photographs the applicant indicated that they were not taken recently. This explanation was consistent with the Tribunal's impression, given the apparent age of the children in most of the photographs in which they were present.
10. After reviewing the available evidence regarding the nature of the parties' household arrangements around the time of application, the Tribunal is of the view that the parties were sharing the care and support of children but were not residing together in a shared household. Mindful that there is no prescriptive model for what a couple's household arrangements should look like, the Tribunal gives some, but limited weight to this aspect as an indicator the parties were at the time of application in a de facto relationship.

1. The Tribunal has considered the social aspects of the relationship - including whether the parties represent themselves to other people as being married to 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.
2. In relation to this aspect, information on the visa application form states that the sponsor and applicant have many of the same friends and that all of their friends and family know that they are a couple. Given the parties are reported to have met whilst working in the same workplace, the Tribunal considers it reasonable that they had mutual acquaintances and friends. In light of the reported criminal charges brought against the applicant for assaulting the sponsor's father and the subsequent AVO put in place to protect her father, it also appears plausible that the parties were, as claimed cohabiting with the sponsor's father for a period of time. It is therefore reasonable to assume that at least this member of the sponsor's family was aware of the parties' relationship.
3. In reviewing the witness support declarations provided in association with the visa application, the Tribunal notes that one of these, sworn by Manpreet Singh on 17 April 2018, indicates that Mr Singh resided at the Atchison Road address, which was provided as the residential address for the applicant on the June 2018 birth certificate of his younger child. This would support the veracity of information provided on the visa application regarding the applicant living separately from the sponsor around the time of application. Mr Singh attests to the relationship between the applicant and sponsor being genuine and the Tribunal has given this document some weight as an indication the parties were in a relationship around the time of application.
4. In relation to witness support provided by Inderjit Singh Virk, the Tribunal considers it appropriate to give some weight to the declarations made by him in a witness support declaration sworn on 17 April 2018. However, in relation to a support letter prepared by him on 15 September 2025, the Tribunal gives no weight to this latter document. This is because in the letter Mr Virk reports visiting the parties recently when they are together as a couple in their home. Given the parties have stated and the Tribunal accepts that they have not shared a household for some years, a period the Tribunal estimates commenced in January 2023, the Tribunal considers content in Mr Virk's recent support letter to be misleading and to misrepresent the parties' current relationship circumstances.
5. As discussed above, photographs provided in association with the visa and review applications show the parties together and with their children. There are only a few that show them in a social setting with other people. This is consistent with evidence given at hearing that the applicant, when he is with them, prioritises time with his children over social commitments with mutual friends and relatives. His explanation at hearing was that due to limited support from other people to babysit the children, it is impractical for the parties to socialise much without the children being involved.
6. The Tribunal's assessment is that on balance the social aspects of the parties' relationship support a finding that they are were in a de facto relationship around the time of application in 2018.

The nature of the persons' commitment to each other

1. The Tribunal has considered the nature of the persons' commitment to each other - including the duration of the relationship; the length of time they lived together; and evidence as to the degree of companionship and emotional support they drew from each other.
2. The parties report that they made a commitment to an exclusive relationship with each other in 2013. Their first child was born in 2016 and their second in 2018. Whilst, as stated by the sponsor at hearing, the parties have had unconventional living arrangements the Tribunal is satisfied that as at the time of application the evidence supports a finding that they had a commitment to their relationship consistent with that of a couple in a de facto relationship.

Conclusion on de facto criteria at time of application

1. Having regard to all the circumstances of this relationship, the Tribunal is satisfied that the parties at the time of application had a mutual commitment to a shared life together to the exclusion of all others. The Tribunal is satisfied that the relationship between them at that time was genuine and continuing. The Tribunal finds the parties around the time of application were not living separately and apart on a permanent basis. The parties are not related by family. Accordingly, the Tribunal finds that the requirements of s.5CB(2) were met at the time of the application.
2. Therefore, the applicant meets cl 820.211(2)(a).
3. The parties were at the time of application both over the age of 18 years and therefore the criteria in cl.820.211(2)(c) was satisfied.

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 both well over the age of 18 years.
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 was at any stage registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12 month requirement.
4. The Tribunal is satisfied the evidence demonstrates the parties were in a relationship for at least the 12 month period ending immediately before the date of the application. In forming this view, the Tribunal has placed weight on the witness support evidence provided with the visa application and the timing of the birth of their elder child in 2016.
5. Accordingly, the Tribunal is 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.
6. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.

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. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.

1. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The 'relevant day' is defined in 3001(2), as set out in the attachment to this decision.
2. The applicant last held a substantive visa on 19 September 2016, being the date on which his Subclass 457 Temporary Skilled visa ceased. As he applied for the Partner visa on 19 April 2018, the Tribunal finds that he did not make the application within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

1. Criterion 3003 only applies to applicants who have not, on or after 1 September 1994, been the holder of a substantive visa, and on 31 August 1994 was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.

1. Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.
2. As discussed above, the applicant last held a substantive visa on 19 September 2016. The applicant contends that he was in a de facto relationship with the sponsor from mid-2013. Whereas he unsuccessfully applied for a student visa after his last substantive visa ceased in September 2016, in the view of the Tribunal it was open to him to have applied for a partner visa prior to, or within 28 days of 19 September 2016. At hearing the applicant gave evidence that he elected apply for the student visa, rather than a partner visa as it would be easier to gather required documentation within the relevant time frame. The Tribunal is not persuaded that the applicant's reason for applying for a student visa, which upon assessment he was not qualified to be granted constitutes a factor beyond the applicant's control that resulted in him not holding a substantive visa.
3. For the above reasons, the applicant does not satisfy criterion 3004.

1. As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.
2. The expression 'compelling reasons' is not defined for these purposes. However, reasons that are compelling should 'force or drive the decision-maker' 'irresistibly' to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute 'compelling reasons' for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.
3. The applicant contends that it is in the interests of his two daughters, Aria and Alexandria, to have a direct in person relationship with him, which would be compromised if he was required to depart from Australia. He contends that it is also in his interest to have direct contact with his daughters which for the same reason, would be compromised if he was required to depart from Australia. The applicant contends that these factors provide compelling reasons as to why the Schedule 3 criteria should not be applied to his Partner visa application.
4. The material before the Tribunal includes information about the applicant's criminal history, which includes convictions in 2021 for contravening an AVO and common assault, and in 2022 for common assault and assault occasioning actual bodily harm. At hearing the applicant gave evidence that the domestic violence related offences occurred at a time he had active alcohol dependency issues and that his assaultive behaviour was directed towards the sponsor's father, who at that time was residing at the same location as the sponsor. The applicant gave evidence that the AVO was put in place to protect the sponsor's father rather than the sponsor, or their two daughters.
5. At hearing the sponsor gave evidence that the applicant has a positive connection to their daughter's and that the girls would be adversely impacted if their connection to their father was compromised by his forced departure from Australia.
6. The Tribunal accepts that it is in the interests of children, particularly in developmentally sensitive periods, to have access to parents when those parents perform the role of a positive attachment figure in a child in the child's life. The applicant's history of violence within the domestic context is of concern, however there is no clear indication that the children have been subjected to violence or witnessed violence such that it would not be in their interests to maintain an appropriately structured and if necessary, supervised connection with their father that is not disrupted by his departure from Australia.
7. In the absence of probative evidence to the contrary, the Tribunal accepts that the benefit to the applicant's children from not having disruption to their connection to their father through the application of Schedule 3 criteria provide a compelling reason to not apply those criteria.
8. Accordingly, the applicant meets cl 820.211(2)(d)(ii).

1. At time of decision the applicant must continue to meet the requirement that they are the spouse or de facto partner of an Australian citizen, an Australian permanent resident, or eligible New Zealand citizen. The applicant must also continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 820.221.
2. The Tribunal's assessment is that the available evidence does not support a finding that the parties are at the time of this decision in a de facto relationship. In forming this view the Tribunal notes that the parties acknowledge that they have not lived together at the same location, thereby sharing a household, since incidents of domestic violence in 2021 and 2022 which resulted in the applicant being convicted of common assault, assault occasioning actual bodily harm and having an AVO being put in place against him, apparently to protect the sponsor's father. The Tribunal found the applicant's explanation at hearing for why the parties did not move back in together after the sponsor and her father stopped cohabiting and as to why they do not share a household at the present time to be unconvincing. The Tribunal is also concerned that the applicant has provided witness support from Mr Virk suggesting the parties continue to share a household together when they do not. The Tribunal considers this document to be misleading in nature. The Tribunal finds that the nature of the parties' household arrangements at the present time do not support a contention that they continue to be in a de facto relationship.
3. As to other aspects of the parties' relationship at the present time, the Tribunal's assessment is that there is little in the material before it that would support findings that the financial, social or commitment aspects of their relationship support a contention that they continue to be in a de facto relationship. The Tribunal is not satisfied transaction records that only cover the August 2025 to October 2025 period provide support to a contention the parties share day to day expenses or pool financial resources towards financial commitments, other than those over that period which appear to be associated with their children. The parties continue to have no shared assets or liabilities, which in a relationship of a claimed duration of now some 12 years, is a circumstance which the Tribunal considers to be increasingly unusual and not indicative of a couple in a continuing relationship. As discussed, the Tribunal has placed no weight on recent witness support from Mr Virk. As to witness support from Kawaljeet Kaur, the Tribunal considers this reflects more upon his personal relationship with the applicant and that it gives only very limited support to a contention the parties continue to be a relationship with each other at the time of this decision. Whilst it may be the case they share a commitment to their children, there is no credible evidence that the parties share social activities with other people where they present as a couple. The Tribunal also found the applicant's evidence in relation to his commitment to the relationship to be vague, generic and unconvincing.
4. The Tribunal finds on the evidence that the applicant is no longer the de facto partner of the sponsor and so does not meet subclause 820.221(1)(a).
5. Where the relationship has ceased and/or sponsorship has been withdrawn, legislation provides for the grant of a permanent visa in certain limited circumstances. Those circumstances are:
   • the death of the sponsor (subclause 820.221(2)), or
   • where it is assessed that the applicant and/or a dependent child of the sponsoring partner or of the applicant or of both of them has suffered family violence committed by the sponsoring partner; (subclause 820.22I (3)(b)(i)), and/or
   • the applicant and sponsor have custody or joint custody of, or access to at least one child and have shared rights and obligations towards that child (subclause 820.221 (3)(b)(ii)).
6. The Tribunal finds there is no evidence that the sponsor is deceased. Accordingly, the Tribunal finds the applicant does not meet subclause 820.221(2).
7. The Tribunal finds there is no evidence and that there is no claim that either the applicant or a dependent child of the parties has suffered family violence perpetrated by the sponsor. Accordingly, the Tribunal finds the applicant does not meet subclause 820.221(3)(b)(i).

Is there a child or children in respect of whom the applicant and sponsor have parental rights and obligations?

1. Clause 820.221(3)(b)(ii) requires that the relationship between the applicant and the sponsoring partner has ceased, and there is a child in respect of whom the applicant has custody, access, or a residence or contact order made under the Family Law Act 1975. The sponsor must also have these rights, or a child maintenance obligation.
2. A person can have a right to custody as an incident of the statutory imposition of parental responsibility by operation of the Family Law Act in relation to a biological child. Similarly, a person can have a formal maintenance obligation to a biological child without a court order, by operation of the Child Support (Assessment) Act 1989 rather than the Family Law Act: Srour v MIMIA [2006] FCA 1228; (2006) 155 FCR 441.
3. There is no contention that the applicant is not the biological father of Aria, born in October 2016 and Alexandria, born in June 2018.
4. Clause 820.221(3)(b)(ii) allows for the grant of the visa where the relationship between the applicant and sponsoring partner has ceased, and there is a child in respect of whom the applicant has custody, access, or a residence or contact order made under the Family Law Act 1975. The sponsor must also have these rights, or a child maintenance obligation. The relevant exemption is contained in cl.820.221(3)(b)(ii):

(3) An applicant meets the requirements of this subclause if:

(a) the applicant would continue to meet the requirements of subclause 820.221(2),(3),(4),(5) or (6) except that he relationship between the applicant and the sponsoring partner has ceased; and

(b) either or both of the following circumstances applies:

• (A) has custody of joint custody of, or access to; or
• (B) has a residence order or contact order made under the Family Law Act 1975 relating to; at least 1 child in respect of whom the sponsoring partner;
• (C) has been granted joint access or custody by a court; or
• (D) has a residence order or contact order made under the Family Law Act 1975;

• (E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

1. Subparagraphs (A) and (E) of cl.820.221(3)(b)(ii) essentially provide that the exception to the relationship requirement will be satisfied where the applicant and sponsoring partner are the biological parents of a child, provided there is no court order which contradicts their relevant general law obligations.
2. The Tribunal finds the applicant and sponsor are the biological parents of Aria and Alexandria. The evidence of the parties at hearing is that the applicant maintains involvement with Aria and Alexandria. The recent financial evidence, such as it is, indicates that the applicant's financial contribution to the sponsor's household is for the purpose of financial support for Aria and Alexandria. There is no evidence or claim that there are Court orders limiting the applicant's access to the children.
3. Therefore, on the evidence before the Tribunal the requirements of cl.820.211(2)(a) and cl.820.221(3)(b)(ii) (E) are met.
4. Given the findings above, the appropriate course is to 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)(a) of Schedule 2 to the Regulations
   • cl 820.211(2)(d ) of Schedule 2 to the Regulations
   • cl.820.221(3)(b)(ii)(E) of Schedule 2 to the Regulations
   • reg 2.03A

**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.

[1] Application for migration to Australia by a partner - record of responses - generated 19 April 2018.

[3] Application for migration to Australia by a partner - generated 19 April 2018.

[6] Application for migration to Australia by a partner - record of responses - generated 19 April 2018.

[7] Other correspondence is addressed to the same street and number in Bradbury, NSW, the suburb immediately next to Airds. The Tribunal is satisfied these refer to the same Wheatly drive address. number in