The Administrative Appeals Tribunal (AAT) has started giving effect to the decision in SZOXP where the Full Court of the Federal Court of Australia held that, “there is no requirement that the couple previously live together in the definition of a “de facto relationship” or in the requirement that the couple “do not live separately and apart on a permanent basis” prior to lodging an application for a Partner Visa.

In what looks to be the first AAT case on the matter, the Tribunal reviewed a decision by the delegate to refuse the grant of a partner visa to a Sri Lankan applicant on the basis that the delegate was not satisfied that there was sufficient evidence that the parties had been living together.

The case involved a same-sex couple who admitted that they had not set up a household together as such and had not lived together as de facto partners.

In its decision to remit the application to the delegate for reconsideration, the Tribunal first observed that given societal attitudes and the laws criminalising same sex unions in Sri Lanka, the 12-month de facto requirement ought to have been waived in any case on the basis of ‘compelling and compassionate reasons’.

The Tribunal then went on to give effect to the Full Federal Court’s decision in SZOXP v Minister for Immigration and Border Protection FCAFC 69 (11 June 2015) which held that:

“...there is no requirement that the couple previously live together in the definition of a “de facto relationship” or in the requirement that the couple “do not live separately and apart on a permanent basis”.

On the facts presented by the couple, the Tribunal was satisfied that the parties gave ‘realistic evidence’ about the way that they were able to conduct their de facto partnership despite family objections. It added further that both parties did give similar accounts of the visa applicant having been beaten by a relative when it became evident that the relationship seemed to be outside what would be considered a simple friendship between two women.