Lum (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Temporary Business Entry (Class UC) visa, Subclass 457, as a member of the family unit of the primary visa holder, Mr. Tempesta. The central dispute revolved around whether the applicant qualified as Mr. Tempesta's de facto partner, thereby establishing her as a member of his family unit for visa purposes.

The Tribunal was required to determine if the applicant met the definition of a "member of the family unit" as defined in the Migration Regulations. Specifically, this involved assessing whether the applicant and Mr. Tempesta were in a de facto relationship, which necessitates a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, cohabitation (or not living separately and apart on a permanent basis), and that they are not related by family. The Tribunal also had to consider the additional criteria that both individuals must be at least 18 years old.

The Tribunal reasoned that the applicant had provided sufficient evidence to establish a genuine and continuing de facto relationship with Mr. Tempesta. This evidence included statutory declarations from both parties detailing the commencement and nature of their relationship, their cohabitation for five years, the operation of a joint bank account since 2015, shared financial responsibilities for rent and utilities, joint travel, and introductions to each other's families. Further supporting documentation included joint rental agreements, utility statements, and bank statements. The applicant's learner's permit confirmed she was over 18 years of age. Given that Mr. Tempesta was confirmed as the holder of a Subclass 457 visa, the Tribunal found that the applicant met the criteria for being a member of his family unit.

Consequently, the Tribunal remitted the applicant's application for a Temporary Business Entry (Class UC) visa for reconsideration, with a direction that the applicant satisfies the criteria under cl.457.321 of Schedule 2 to the Regulations.