Chen (Migration)

The applicant, Chen, sought judicial review of the Minister's decision to refuse her application for a Student (Temporary) (Class TU) visa, subclass 500. The refusal was based on the applicant not satisfying the criteria for inclusion as a member of the family unit, specifically concerning a claimed de facto relationship. The Administrative Appeals Tribunal had affirmed the delegate's decision.

The primary legal issue before the Federal Court was whether the applicant's relationship with the primary visa holder constituted a de facto relationship for the purposes of the Migration Regulations 1994 (Cth). This required the Court to consider the characterisation of such relationships under Taiwanese law and whether the relationship met the regulatory requirement of having existed for at least 12 months prior to the visa application.

Meredith Jackson J reasoned that the evidence did not establish a de facto relationship as defined by the regulations. Her Honour noted that while the applicant and the primary person had a close relationship, the applicant lived in the home of the primary person’s family, and the relationship was characterised in Taiwan as a boyfriend-girlfriend relationship rather than a de facto partnership. This characterisation, coupled with the living arrangements, did not satisfy the objective elements of a de facto relationship as understood in the context of the Migration Regulations.

The application for judicial review was dismissed.