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Tribunal: Member Meredith Jackson

The Administrative Appeals Tribunal (AAT) reviewed a decision made by the Department of Immigration and Border Protection (the Department) in September 2017 to refuse the applicant a temporary student visa.

The applicant applied for the visa on the basis of being in a de facto relationship with the primary student visa holder, who is now her husband.

The Department refused to grant the visa on the basis the applicant did not satisfy the requirements[1] that she was a family member, in this case a partner in a de facto relationship, for at least 12 months prior to her student visa application (14 July 2017). 

The Department found the applicant could only prove she had been in a de facto relationship since January 2017.The applicant and the primary student visa holder arrived in Australia with working holiday visas on the same flight in September 2016 and married in September 2017. However, the applicant claimed that they had been in a ‘boyfriend-girlfriend’ relationship for eight years.

As evidence of the long standing relationship, the applicant provided a declaration from the visa holder’s parents that they all lived together in Taiwan and that they were ‘a couple’, photographs of the pair dating back to 2008 and details of a joint bank account.

The AAT assessed this evidence, mindful that neither one declared the other as a de facto partner in their working holiday visa applications.

According to the Migration Act a person is in a de facto relationship with another person if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing and they live together or do not live separately and apart on a permanent basis.

The AAT found the applicant and her visa holder partner were in a boyfriend-girlfriend relationship for several years but this relationship was not enough to demonstrate that they were in a de facto relationship until September 2016.

Given that September 2016 was only nine months prior to the visa application date, the AAT affirmed the Department’s decision not to grant the visa.

Read the full decision on AustLII.

 

[1] Clause 500.311 of the Migration Act 1958