Chanpen (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) visa (Subclass 186) to the Administrative Appeals Tribunal. The applicant sought to be recognised as a member of the family unit of the primary visa applicant, Alisa Sampantarat. The Tribunal was required to determine whether the applicant satisfied the criteria for being a member of the family unit, specifically whether he was the de facto partner of the primary applicant.

The central legal issue before the Tribunal was the interpretation and application of the definition of "member of the family unit" as provided in regulation 1.12 of the Migration Regulations 1994, and the definition of "de facto partner" under section 5CB of the Migration Act 1958. The Tribunal had to consider whether the applicant and the primary visa applicant were in a genuine and continuing de facto relationship, taking into account the circumstances outlined in regulation 1.09A, which include financial aspects, the nature of the household, social aspects, and the nature of their commitment to each other.

The Tribunal's reasoning was based on the uncontradicted evidence provided by the primary applicant, Alisa Sampantarat. This evidence indicated that the applicant and Ms. Sampantarat had permanently separated in 2022, no longer lived together, and had ceased to have a mutual commitment to a shared life to the exclusion of all others. Consequently, the Tribunal found that their relationship was no longer continuing and that the applicant did not meet the definition of a de facto partner under section 5CB of the Act and regulation 1.09A. As there was no other basis for the applicant to be considered a member of the family unit under regulation 1.12, the Tribunal affirmed the decision not to grant the visa.