Federal Court (Full Court). Child applied for child visa. Cl 101.222 of Sch 2 required approval of sponsorship. Sponsoring mother used to live with Mr M, who was not the father of the child, was in prison at TOD, was the father of 2 other children of the mother and gave her financial support. AAT had power under reg 1.20KB(12) to refuse sponsorship if it requested police check for sponsor's de facto partner and such partner did not provide it. Mother denied Mr M was her de facto partner and police check was not provided. Is residence in prison a factor as to whether a couple has a de facto relationship? Should AAT have considered s 5CB? If so, did AAT's speculation that Mr M might want to "visit" his children once released despite its finding that he was in a de facto relationship with the mother indicate it did not consider s 5CB(2)(c) and therefore s 5CB?
The questions to the Federal Court (FCA) were as follows:
Question 1: Is residence in prison a factor that can be used to determine whether a couple has a de facto relationship?
Question 2: Should AAT have considered s 5CB(2) of the Migration Act 1958 (Cth) in order to determine, for the purposes of cl 101.222 of Schedule 2 and reg 1.20KB(12) of the Migration Regulations 1994 (Cth), whether the sponsor and Mr M were in a de facto relationship?
Question 3: If the answer to Question 2 is "yes", did the AAT's speculation that Mr M might want to "visit" his children once released despite its finding that he was in a de facto relationship with the mother indicate that the AAT did not consider s 5CB(2)(c), which required a de facto couple to either live together or not separately and apart on a permanent basis, and therefore did not consider s 5CB?
The FCA answered those questions as follows:
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