Wandaka (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs to refuse a Subclass 500 (Student) visa. The applicant, Evalyn Mweru Wandaka, sought to be granted the visa as a member of the family unit of a primary visa holder, Joseph Chege Kibunja. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically cl.500.311 of Schedule 2 to the Migration Regulations.

The central legal issue before the Tribunal was whether the applicant satisfied cl.500.311, which requires an applicant to be a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa. This involved assessing whether the applicant had established a genuine de facto relationship with the primary person for at least 12 months prior to the lodgement of the primary person's visa application, as required by Regulation 2.03A.

The Tribunal considered the evidence presented by the applicant, including images of the couple, the birth certificate of their son, and various financial documents such as joint bank statements and income statements. However, the Tribunal found that while the evidence indicated a genuine and continuing relationship between the applicant and the primary person, it did not sufficiently demonstrate that they had been in a de facto relationship for the requisite 12-month period before the primary person's visa application was lodged. Consequently, the Tribunal concluded that the applicant did not meet the criteria set out in cl.500.311 of the Regulations.

Accordingly, the Tribunal affirmed the decision of the Department not to grant the applicant a Subclass 500 (Student) visa.