Souris (Migration)

The Administrative Appeals Tribunal considered the case of Ms Souris, who sought review of a decision not to grant her an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically under the Temporary Residence Transition stream. The dispute centred on whether Ms Souris qualified as a member of the family unit of the primary applicant, Mr Feder, for the purposes of the visa application.

The primary legal issue before the Tribunal was to determine if Ms Souris met the requirements of clause 186.311 of Schedule 2 to the Migration Regulations 1994. This clause mandates that an applicant must be a member of the family unit of a primary applicant who holds a Subclass 186 visa granted based on satisfying the primary criteria, and that a combined application was made. The Tribunal needed to ascertain the veracity of the claimed de facto relationship between Ms Souris and Mr Feder at the time of the application and review.

The Tribunal's reasoning was informed by evidence suggesting the de facto relationship between Ms Souris and Mr Feder had ended prior to the submission of a subsequent notification form claiming the relationship was ongoing. Ms Souris's former legal representative had advised the Department of Home Affairs that the relationship had concluded and requested withdrawal from the application. While Ms Souris responded to the Tribunal's invitation to comment, asserting that the relationship ended due to family violence and that Mr Feder had threatened her, she also claimed she lacked access to the visa application. The Tribunal found that the requirements for the Temporary Residence Transition stream had not been met, irrespective of the claims of family violence, as the fundamental requirement of being a member of the family unit of the primary applicant was not established.

Consequently, the Tribunal affirmed the decision not to grant Ms Souris the visa.