GILL (Migration)

The applicant, Gill, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed the refusal of her application for a Student (Temporary) (Class TU) visa, subclass 500. The primary dispute concerned whether Gill was a member of the family unit of the primary visa holder, whose own student visa had expired.

The central legal issue before the court was whether the Tribunal erred in law by failing to consider, or adequately consider, evidence suggesting a de facto relationship existed between Gill and the primary visa holder prior to the grant of the primary visa holder's initial student visa. The applicant contended that the Tribunal's decision was vitiated by this failure, particularly in light of the Tribunal's objectives and the nature of the review before it.

The court found that the Tribunal's decision was affected by an error of law. While the Tribunal was not required to make a finding as to the existence of a de facto relationship at the time of the primary visa holder's initial application, it was required to consider the evidence of such a relationship when assessing Gill's subsequent visa application. The Tribunal's failure to do so, despite the applicant's request for an adjournment to present further evidence, meant that the decision under review was not based on a proper consideration of all relevant material.

The court set aside the Tribunal's decision and remitted the matter to the Tribunal for redetermination according to law.