RODRIGUEZ SANCHEZ (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Subclass 500 (Student) (Subsequent Entrant) visa. The applicant sought to establish that they were a member of the family unit of the primary visa holder, specifically by being in a de facto relationship for at least 12 months prior to the visa application date. The primary dispute revolved around whether the applicant met the criteria for being a member of the family unit as defined by the Migration Regulations 1994.

The legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 500.311 of Schedule 2 to the Migration Regulations 1994, which necessitates that an applicant be a member of the family unit of a primary visa holder. This involved determining if the applicant had been in a de facto relationship with the primary visa holder for the requisite 12-month period immediately preceding the visa application, as stipulated by regulation 2.03A and section 5CB of the Migration Act 1958. The Tribunal also considered whether any exceptions to the 12-month requirement, such as registered relationships or compelling and compassionate circumstances, applied.

The Tribunal affirmed the decision to refuse the visa. It found that the applicant had not provided sufficient evidence to establish that they were in a de facto relationship for the required 12-month period before the application was made. The applicant's contention that they met the criteria was not substantiated to the Tribunal's satisfaction, and no compelling or compassionate circumstances were found to justify waiving the standard requirements. Consequently, the Tribunal concluded that the applicant did not meet the criteria for the grant of the visa.