Do (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision not to grant a Skilled (Provisional) (Class VC) visa, subclass 485. The applicant was not the de facto partner of the primary visa holder, Ms. Ngoe Minh Quan Tran, and therefore sought to establish that they were a member of Ms. Tran's family unit under the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the applicant qualified as a "member of the family unit" of Ms. Tran for the purposes of regulation 485.311 of the Migration Regulations 1994. This required the Tribunal to determine if the applicant met the definition of a family member as set out in regulation 1.12, specifically whether they were a spouse or de facto partner of the family head.

The Tribunal reasoned that the applicant was not a member of Ms. Tran's family unit because they were neither married nor in a de facto relationship. The applicant explicitly confirmed the termination of their de facto relationship due to Ms. Tran's decision not to accompany him to Tasmania, which led to his independent visa application. The Tribunal noted that the definition of a de facto partner under section 5CB of the Act requires a mutual commitment to a shared life, a genuine and continuing relationship, and living together or not living separately on a permanent basis. As the applicant and Ms. Tran had separated, these criteria were not met.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa, subclass 485, as the applicant did not satisfy the requirements of regulation 485.311.