Piyasenage (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 claimed to be a member of the family unit of the primary visa applicant, specifically as their de facto partner. The primary applicant held a subclass 485 visa which had expired.

The central legal issue before the Tribunal was whether the applicant qualified as a member of the family unit of the primary applicant, as defined by the Migration Regulations 1994, and consequently satisfied the criteria for a subclass 485 visa under regulation 485.311(b). This required determining if the applicant was the de facto partner of the primary applicant, which in turn necessitated an assessment of whether their relationship met the criteria for a de facto relationship as defined by section 5CB of the Migration Act 1958.

The Tribunal reasoned that to establish a de facto relationship under section 5CB, the couple must not be married or related by family, share a mutual commitment to a shared life to the exclusion of others, and their relationship must be genuine and continuing, living together or not living apart on a permanent basis. The Tribunal noted that it could consider various circumstances outlined in regulation 1.09A, including financial aspects, household arrangements, social aspects, and the nature of their commitment. However, the applicant had failed to provide requested further information and evidence relating to their relationship with the primary applicant by the specified deadline.

Consequently, the Tribunal concluded that the applicant had not satisfied the requirements of regulation 485.311(b) because they had not demonstrated they were a member of the family unit of the primary applicant. The Tribunal affirmed the decision not to grant the visa.