1815581 (Migration)

This matter concerns a review of a decision to refuse a Child (Migrant) (Class AH) visa (Subclass 101). The applicant was required to satisfy clause 101.213(1)(a) of the Migration Regulations 1994, which mandates that at the time of application and at the time of the decision, the applicant must not have, or have ever had, a spouse or de facto partner. The delegate refused the visa on the basis that the applicant had been in a de facto relationship, thus failing to meet this requirement.

The central legal issue before the Tribunal was whether the applicant had a de facto partner at the time of her visa application, contrary to her declaration. This was complicated by inconsistent information provided in a previous visitor visa application lodged in March 2015, where the applicant stated she was in a de facto relationship and identified a Mr A as her spouse/de facto partner in the non-accompanying family members section. In contrast, the current Child visa application lodged in August 2016 stated she had never been married or in a de facto relationship.

The Tribunal considered the applicant's explanation that the inconsistencies in the visitor visa application were due to a mistake, compounded by her ex-husband's actions, and her limited understanding of the term "de facto" due to using Google Translate. However, the Tribunal found the questions in the visitor visa application to be clear and unambiguous. It concluded that the applicant's stated relationship status as "de facto" and the identification of Mr A as her spouse/de facto partner in the non-accompanying family members section were not accidental errors, especially given that two individuals were involved in completing the form. The Tribunal did not accept that such a mistake would be made if Mr A was not, in fact, the applicant's de facto partner at that time, nor that he would be identified as a family member if he was not considered as such. Consequently, the Tribunal affirmed the delegate's decision to refuse the visa.