Nguyen (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Student (Temporary) (Class TU) visa, Subclass 500. The applicant, a 24-year-old Vietnamese citizen, claimed to be in a de facto relationship with the primary visa holder. The core dispute revolved around whether the applicant met the genuine temporary entrant criterion for the visa.

The Tribunal was required to determine if the applicant had satisfied the genuine temporary entrant criterion, specifically in relation to her claimed de facto relationship with the primary visa holder. This involved assessing whether the applicant had provided sufficient evidence to demonstrate the genuineness and continuing nature of this relationship, as defined by section 5CB of the Migration Act 1958, and whether she had met the requirements of clause 500.312 of Schedule 2 to the Migration Regulations 1994. The Tribunal also had to consider the Minister's Direction No. 69, which provides guidance on assessing the genuine temporary entrant criterion.

The Tribunal reasoned that the applicant had not satisfied the Tribunal that she was in a genuine de facto relationship because she did not provide evidence at the hearing. The definition of a de facto relationship under section 5CB requires a mutual commitment to a shared life, a genuine and continuing relationship, and that the couple live together or not separately and apart on a permanent basis. The Tribunal noted that regard must be had to all circumstances of the relationship, including financial and social aspects, the nature of the household, and commitment to each other, as outlined in clause 1.15A(3) of the Regulations. As the applicant did not provide evidence, these questions could not be answered in her favour.

Consequently, the Tribunal was not satisfied that the applicant met the requirements of clause 500.312 of Schedule 2 to the Regulations. The applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Therefore, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.