Tiong (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 500 (Student) visa as a subsequent entrant. The dispute centred on whether the applicant met the criteria for this visa subclass, specifically clause 500.311 of Schedule 2 to the Regulations, which requires the applicant to be a member of the family unit of the primary visa holder at the time the primary visa was lodged.

The primary legal issue before the Tribunal was to determine if the applicant was genuinely a member of the family unit of the primary visa holder when she lodged her application on 21 August 2018. The applicant acknowledged he did not meet this criterion at that time, stating they were only boyfriend and girlfriend and only entered into a de facto relationship in late August 2018 to avoid separation. The Tribunal had to assess the credibility of the applicant's claims in light of evidence suggesting inconsistencies.

The Tribunal found that the applicant's explanation was not credible. While the applicant presented a Queensland Relationship Certificate registered on 27 August 2018, statements provided to the Department and the Tribunal indicated the parties had been living apart for approximately two years prior to the primary visa application and did not wish to continue a long-distance relationship. Furthermore, the applicant's explanation for not marrying if the relationship was long-term and supported by family and friends, and the primary visa holder's statement that they registered their relationship specifically to meet the visa requirement due to not having been in a de facto relationship for 12 months, undermined the claim of a genuine de facto relationship existing at the relevant time. Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for the Subclass 500 (Student) visa.

The Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.