Zhou (Migration)

[2022] AATA 3538

Zhou (Migration) [2022] AATA 3538 (27 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kai Zhou

REPRESENTATIVE:  Mr Yu Zhang (MARN: 1790023)

CASE NUMBER:  2200306

HOME AFFAIRS REFERENCE(S):          BCC2021/1491322

MEMBER:Peter Booth

DATE:27 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the     _____________________  applicant a Student (Temporary) (Class TU) visa.

Statement made on 27 September 2022 at 1:50 pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – member of the family unit – subsequent entrant – secondary applicant not included in the primary application – registration of relationship after visa application – financial arrangements – decision under review affirmed   

LEGISLATION

Family Law Act 1975, s 4AA
Migration Act 1958, ss 65, 338, 347
Migration Regulations 1994, Schedule 2 cl 500.311; rr 1.03, 1.09, 1.12, 2.07

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant (‘the applicant’) applied for the visa on 29 July 2021 as a Subsequent Entrant and as a member of the family to join his partner, Ms Linghui Xiang (Ms Xiang) who holds a TU-500 Student Visa (‘the application’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). Ms Xiang was the primary applicant for a Subclass 500 (Student) visa to undertake study in Australia and neither the applicant nor Ms Xiang claims to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 22 December 2021, the delegate refused to grant the applicant the visa on the basis that the applicant did not satisfy the requirements of clause 500.311(a)(i) of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that he became a member of Ms Xiang’s family prior to the grant of her student visa but was not included in the primary visa applicant’s (Ms Xiang’s) application. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 7 January 2022, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. The applicant and his partner, Ms Xiang appeared before the Tribunal in a telephone hearing on 4 July 2022 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed in this case.

7. The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to the information that the Tribunal has found to be fundamentally or materially significant to the determination of the issues in the case.

   STATUTORY FRAMEWORK

8. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant satisfies the secondary criteria.

   Clause 500.311: ‘member of the family unit of a person who holds A student visa’

9. Clause 500.311 requires as follows:

   The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:

   (a)   the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:

   (i)the primary person's application under sub regulation 2.07AF (3); or

   (ii)information provided in relation to the primary person's application under sub regulation 2.07AF (4); or

   (b)   the applicant became a member of the family unit of the primary person:

   (i)after the grant of the student visa to the primary person; and

   (ii)before the application was made.

10. Sub regulation 2.07AF provides as follows:

    (1)This regulation applies in respect of an application for a Student (Temporary) (Class TU) visa.

    (2)Despite anything in regulation 2.07, an application may be made on behalf of an applicant.

    (3)An application by a person who seeks to satisfy the primary criteria (the primary applicant) must include:

    (a)   the name, date of birth and citizenship of each person who is a member of the family unit of the applicant at the time of the application; and

    (b)   the relationship between the person and the applicant.

    (4)If a person becomes a member of the family unit of the primary applicant after the time of application and before the time of decision, the primary applicant must inform the Minister, in writing, of:

    (a)   the name, date of birth and citizenship of the person and

    (b)   the relationship between the person and the primary applicant.

    (5)Subregulations (3) and (4) apply:

    (a)   whether or not the member of the family unit is an applicant for a Student (Temporary) (Class TU) visa; and

    (b)   if the member of the family unit is not an applicant for a Student (Temporary) (Class TU) visa--whether or not the member of the family unit intends to become an applicant for a Student (Temporary) (Class TU) visa.

11. Clause 500.311 relevantly requires that any applicant who became a family member of the family unit of a person who holds a student visa before the grant of the student visa to that primary person must have been included in the primary person’s application or information provided in relation to the primary person’s application under sub regulation 2.07AF.

    Significance of 500.311(a) Criterion

12. Where a subsequent entrant was a member of the primary applicant’s family at the time that the latter applied for their student visa, producing evidence that the applicant was included in the primary visa holder’s application for a student visa is a critical first step towards obtaining a subsequent entrant student visa. The Tribunal must therefore be presented with evidence that shows the applicant was included in the primary visa holder’s application for their student visa. Absent such evidence, a subsequent entrant student visa cannot be grated.

13. Where a subsequent entrant was a member of the primary applicant’s family at the time and the latter applied for their student visa producing evidence that the applicant was included in the primary visa holders application for a student visa is a critical first step towards obtaining a subsequent entrant student visa. Accordingly the Tribunal must be satisfied on the evidence that the applicant was included in the primary visa holders application for their student visa. In the absence of such evidence a subsequent entrant student visa cannot be granted.

    Member of family unit

14. The Migration Act 1958 (the Act) provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in r.1.12. The definition in r.1.12 applies for the purposes of both the Act and the Regulations.

15. Regulation 1.12 (2) provides that a person is a member of the family unit of another person if the person is a spouse or de facto partner of the family head.

16. Section 5 (1) states that the phrase “de facto partner” has the meaning given by section 5CB.

17. The definition of de facto partner appears in section 5CB (2) which provides that a person is in a de facto relationship with another person if they are not in a married relationship with each other but they have a mutual commitment to a shared life to the exclusion of all others; and the relationship between them is genuine and continuing; and they: live together or do not live separately and apart on a permanent basis and they are not related by family.

18. The definition of de facto partner is supplemented by regulation 1.09A which outline factors to consider when determining if the definitions is met. The key requirements of a de facto relationship are matters specified concerning the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the persons’ commitment to each other.

19. Pursuant to regulation 1.0 9A (4) the Tribunal may consider any of the circumstances specified in regulation 1.09A when determining whether a person is the ‘de facto partner’ of another.

    THE HEARING

20. The applicant gave evidence at the hearing, the substance of which was follows.

21. The applicant had read the delegate’s decision dated 22 December 2021 refusing his application for a student visa.

22. The applicant understood that the issue for determination was whether he was a member of Ms Xiang’s family unit and satisfied the requirements of cl 500.311 in order to qualify for a student visa.

23. The applicant was asked whether he had a copy of Ms Xiang’s student visa application. He said that he did and that it was made in February 2021. The Tribunal invited the applicant to provide a copy of that document subsequent to the hearing. He said that he would do so.

24. The Tribunal put to the applicant that he was not mentioned in the application as Ms Xiang’s de facto partner. He said, “yes correct did not believe we were don’t believe met requirements of the de facto relationship at the time”. The Tribunal asked the applicant to explain the nature of his relationship with Ms Xiang at that time. He said, “circumstances are that partner and I met in 2018 at the time we were just friends, then in 2019 she got lease herself, we live separately, previous agent wrote that on 5 January 2020 my current partner and I started to live together”. Here, the applicant was asked to identify the document and where could be found. He said, “when department rejected, he referred to it”. He was again invited to identify the document. He said, “it is in decision record”. He was asked to explain the nature of the document. He said, “document provided earlier on”.

25. The Tribunal asked the applicant when the de facto relationship commenced. He said (June 2021”. He was asked what evidence he relied on to support that contention. He said, “we applied certificate of de facto”. He was asked to state the date of that certificate and replied, “23 August 2021”. The Tribunal observed that the date of the application for registration of relationship was 21 June 2021. The applicant agreed.

26. He was asked why he applied for such a certificate in June 2021. He said, “at time both our parent agree to our relationship and we felt the relationship should go into new stage”.

27. He was asked when he started cohabiting with Ms Xiang he said “September 2020”. The Tribunal asked the applicant to state their place of residence at that time. He said “1302/18 Mount Alexander Road”. The Tribunal asked the applicant whether they were renting those premises. He said “yes”. He was asked to identify the name of the tenant in the lease document. He said, “my name”. The applicant was asked when he executed the lease. He said, “June of that year”. He was asked when Ms Xiang moved into those premises. He said “September 2020”. The applicant was asked whether anyone else was living at that location with he and Ms Xiang at that time. He said, “no one else”. When asked whether anyone else had been living there previously with him he said, “flatmate move without at beginning of 2020 since then no one else”.

28. He was asked what other evidence he relied on to prove the de facto relationship. He said, “we have new lease and also joint bank account”. When asked whether he had provided the bank account details to the Tribunal he said, “already to department”.

29. The applicant was asked when the bank account was opened. He said, “set up to bank account, the first in October 2020, second in January 2021”. He was asked to identify the name of the bank and the names in which the account was opened. He said, “first Commonwealth Bank in both names, second is HSBC, in both names”. He was invited to provide copies of the statement after the hearing. He said that he would do so.

30. The Tribunal observed that he had provided one page of an HSBC account, not the first page and that it did not contain information as to the account holders. He was informed that he needed to provide better proof of this point. When asked if he understood he said “yes”. The Tribunal put to the applicant that the evidence given by him so far was that he commenced cohabitation in September 2020, then opened joint bank accounts with his partner the first in October 2020 and the second in June 2021. The applicant agreed. The applicant confirmed that his partner student visa application was made in February 2021 and that he was not mentioned in the student visa application as a secondary applicant or as his partner’s de facto spouse.

31. The Tribunal explained that to qualify as a family member of his partner’s family unit, the applicant must be identified in the student visa application as the de facto partner of Ms Xiang but that he was not. The applicant responded, “but partner has provided written statement to explain”. The Tribunal invited the applicant to explain. He said, “because when she was making student visa application, she either did not think we were in de facto relationship and was not stable enough to be in de facto relationship only in April 2021 win told parents we started”.

32. The Tribunal observed that in February 2021 he had started cohabiting with Ms Xiang. The applicant agreed. The Tribunal asked whether they were living in a de facto relationship at that time. He said, “at time did not live together in de facto relationship”. He was asked when the de facto relationship commenced. He said, “21 June 2021”. The Tribunal observed that that was the date of on which he applied for the relationship certificate and asked whether he was contending that there was no de facto relationship prior to that date. He said, “on two April we both told parents of relationship and decided to develop into de facto relationship, in June our parent agree, and then we applied for certificate, also in September 20 when she moved to unit had two bedrooms, we have separate bedroom, did not have sexual relationship at the time”.

33. The Tribunal asked the applicant why they had opened joint bank accounts in October 2020 if they were not in a de facto relationship. He said, “main reason was because it was convenient to pay all bills and pay rent and pay 50% of bank account”. He was asked to state the amount of the rent. He replied, “around $1700 or $1800”. When asked to state his share of the rent he said, “one half, $900”. The Tribunal asked how often he deposited his share of the rent into the joint bank account. He said, “quite random sometimes I put in about two months, sometimes I put in for 2 months”. The Tribunal asked whether Ms Xiang also deposited money into the account. He said “yes”. He was asked how much she deposited and how frequently. He said, “approximately one month, about every month”. He was asked whether the money in the account was used to pay anything other than rent. He said, “yes also covered daily expenses for grocery and bills like phone and electricity”. When asked whether the funds in the account was used to pay anything other than those items he said “no”. He was asked whether he was referred to the CBA account. He said, “I was talking to both accounts”. He was asked whether the CBA account was used to pay anything other than rent groceries and utilities. He said, “yes occasionally to purchase other things or call UBER”.

34. He was asked whether he had a copy of bank statements. He said that he did. The Tribunal directed his attention to the account with the account number concluding in numerals “8982”. Tribunal observed that many of the debits were not in respect of rent or groceries or utilities. He replied, “we use bank account to purchase stuff”. The Tribunal observed that an entry on 6 November was for the clothing shop UNICLO. He said, “yes so purchase facemask and bedding”. The Tribunal drew his attention to another debit on 8December to “Mecca “. He was asked whether this was in respect of rent groceries or utilities. He said, “present bought for her friend”. The applicant was asked whether this purchase utilised the money set aside for rent utilities and groceries. He said, “yes we used to pay bills and other things”. The Tribunal observed that the evidence rather suggested that the bank account was used by two persons as a joint bank account to pay for whatever was needed as would be expected in a de facto relationship. He had invited the comment. He said, “no for example in May used to purchase something she used to pay money back to me”.

35. The Tribunal observed that on 8 December, a sum of $31,500 was deposited and invited the applicant to explain. He said, “I make it”. He did not elaborate. He was invited to explain why the payment was made. He said, “some time ago”. The Tribunal asked whether he was contending that he did not recall why he transferred $31,500 into an account held jointly with another person. He said, “I remember I transfer from own bank account and then to Ms Xiang account to pay tuition fee, her father then repaid me”. The Tribunal asked the applicant why he would pay tuition fees for that person if he was not in a de facto relationship with her. The applicant stated, “I only pay an Australian dollar because could take quite some time to land in bank account, if the delay would have a punishment”. The Tribunal observed that it was difficult to accept that he would pay the money at all if he was not in a de facto relationship. He said, “we were friends of time, the father transfer into my account, then I used it to pay money for her”. The Tribunal asked the applicant whether he was contending that he received the money from Ms Xiang’s father prior to transferring into the joint account. He said, “her father transfer to her first and then she transferred”. The applicant was asked whether he received the money and then transferred into the joint account. He said “yes”. He was asked why Ms Xiang’s father did not transfer the money directly to her and then she pay her own tuition fee. She said, “because her father had paid Chinese money into but took bank quite time to transfer into Australian currency, she needed in a hurry, so I paid it”. When he was in invited to answer the question directly, he said “because Ms Xiang did not have sufficient to pay fee”.

36. The Tribunal proceeded to ask the applicant further questions about individual transactions. His answers were sometimes inconsistent, but the Tribunal has formed the view that the applicant and Ms Xiang were using the joint bank accounts for a variety of purposes and not just simply for the payment of rent, groceries and utilities as between flatmates but rather as would be expected by a de facto couple.

37. The Tribunal invited Ms Xiang to give evidence. She said, “I am insecure person and want him to accompany me and then return to China”. She added “I did not declare him this family member, it was negligent at that time, I had no knowledge of de facto, not part of Chinese tradition”. She was asked when the de facto relationship commenced. She said, “23 June, on that day I told parent and then they allowed us”. When the question was repeated, she said “I told parent that was to April”. When the question was repeated for a further time, she said “I believe started on 23 June”. She was asked when she and the applicant commenced living as “man and wife”. She said, “2 April 2021”. She was asked why she commenced the joint bank account with the applicant if they were not in a de facto relationship. She said, “because I didn’t know that two people should be in marriage for joint account also all those transactions, I gave him Chinese currency and then I use Australian dollars because I am scared of scams”. She was asked whether she had her own Australian bank account. She said “yes”. She was asked whether she had said account at the time of opening the joint accounts. She said “yes”. The applicant was asked why she did not use her own account. She said, “for me to use own bank account would need money to be transferred, so some time for delay, I use his and avoid that delay”. The Tribunal informed Ms Xiang that it’s clear impression that the joint bank account formed part of the common pool of money which were used by Ms Xiang and the applicant for joint purposes and invited her to comment. She said “because some time my own bank account did not have sufficient Australian dollar, he transfer so a time to wait “.

1. The applicant provided a variety of documents to the Tribunal and to the Department. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to those documents. Statements from a Commonwealth Bank account styled in the name of the applicant and Ms Xiang showed debits which appear to be for groceries, restaurants, café’s, veterinarians, clothing retailers and cosmetics. One such statement is for the period 7 October 2020 until 3 February 2021. Another is in respect of the period 4 February 21 until 30 April 2021. Another such statement is in respect of the period 1 May 2021 until 28 June 2021. A letter from the bank dated 29 June 2021 in respect of the joint bank account states there was credit of more than $50,000 as at 29 June 2021. A statement of account from HSBC was provided. Although the account names are not visible this was said to be a joint account. It shows debits for what appear to be pharmaceuticals and supermarket transactions. Another HSBC statement in joint names is in respect of the period 4February 2021 until 4 March 2021. It records debits for supermarkets, veterinarians, general retailers, restaurants, and a florist. Another such statement is in respect of the period for May 2021 until 4 June 2021 and show similar transactions including debits to Melbourne Central and Looksmart Alterations. Various utilities accounts were provided in joint names for periods during 2021 including April and July.

2. The conclusion of the Tribunal based upon these documents and the evidence of the hearing is that the parties did operate at least two joint bank accounts, one with CBA and another with HSBC. These accounts were used for purposes other than paying rent and utilities and included payments to supermarkets, chemists, stationery retailers, florists, veterinarians, restaurants, taxis, clothing retailers and clothing alteration services. The applicant asserted that the joint bank accounts were for convenience and for the purposes of paying rent, utilities, and groceries. Whilst it may not be unusual for housemates who are not in a de facto relationship to operate financial affairs for mutual convenience in such a fashion, the evidence is more consistent with the conduct of expenses born jointly by persons in a de facto relationship.

3. A hotel booking reservation confirmation was provided for the period between 5 April until 8 April. The year was not stated. It is in respect of a hotel in Sydney. The guest is stated to be Ms Xiang. A residential tenancy bond authority receipt dated 17 June 2021 confirms that a bond was received from the applicant and Ms Xiang. An undated letter from a property management company confirms that the applicant and Ms Xiang resided at unit 1302/18 Mount Alexander Road from 5 January 2020 until June 2021. The bond authority letter and the letter from the property management company could equally be consistent with housemates sharing responsibility in the shared accommodation as with the parties being in a de facto relationship. The receipt from the Sydney hotel is perhaps more consistent with the conduct of a de facto couple although this is not clear.

4. There are also several statements by the applicant and Ms Xiang.

5. A statement from Ms Xiang was provided. It is dated 20 June 2022 and has no page or paragraph numbers. She stated that when submitting the student visa application, she was asked by the agent whether she was married. She stated that she responded by saying that she did not consider herself married without a marriage certificate. She also states that she was never given advice in relation to the concept of a de facto relationship in Australia. She stated that her relationship with the applicant until September 2020 was that of a close friendship. Thereafter, she stated “we are dating with each other”. She moved into his residence in September 2020 but occupied a separate room and “we had no sexual relationship”. She stated that they opened a joint bank account but that was for convenience to pay the rent. Between February and June 2021, she said that the relationship “should be one level closer than before but it was not yet reached the criteria of de facto relationship”. She goes on to say that cultural reasons meant that they needed parental consent in order to do so. She also contends that the de facto relationship is not permitted under Chinese law. Ms Xiang stated that the couple filed the application for a de facto relationship certificate with the consent of their parents on 21 June 2021. They received that certificate in August 2021 and “from that day we established our “de facto relationship””.

6. Ms Xiang provided a second statement. It is also undated, unsigned without page or paragraph numbers. In it she states that she met the applicant in 2020 and after some time “decided to start a relationship on 14^th of February”. Further that she began to live with the applicant. It is not clear when this occurred perhaps after March 2020. She stated that during lockdown they were living together and that “sometime in the lockdown ends we will go to the beach for a walk, take a photo and go on a road trip with our friends”. She stated that after living with the applicant for “more than one year” they decided to start a de facto relationship on 2 April 2021. On 8 December 2020 “we had a train trip to Geelong” and that “there is a tent hotel at BIG 4 holiday parks”. On 5 April 2021 “we went to Sydney just for a break”. This statement rather suggests that the applicant and Ms Xiang were in a close emotional relationship from at least 14 February 2020. It is not clear whether that relationship could be properly characterised as a de facto relationship.

7. The applicant provided a statement entitled “relationship statement”. It is undated, unsigned and without page or paragraph numbers. He states that on 14 February Ms Xiang “agreed to be my girlfriend”. He also states that “after living with her for more than one year we decided to officially start our de facto relationship on 2 of April 2021”. He states that on 8 December 2020 the pair travelled to Geelong, stayed in a holiday park and “we booked a very special safari tent for that night” further that they “went to Sydney on 5 April 2021”. This statement is in extremely similar terms to one of the statements made by Ms Xiang.

8. The applicant’s representative provided written submissions to the Department. The submissions are undated but on the basis that the applicant was not in a de facto relationship between 5 February 2021, the date of Ms Xiang’s student visa application and 28 May 2021, the date on which the application for a student visa was granted. The submissions contended that the parties did not satisfy section 4AA of the Family Law Act. It was contended that Ms Xiang did move into the applicant’s residence in January 2020 but that she was not present permanently. It is asserted that she kept her own apartment and that the purpose of her visiting the applicant was because by that stage he was looking after her cat. Further the representative contends there is no evidence of any joint assets, ownership, liability or other significant financial connections. It is contended that the joint accounts were used for convenience and for the purposes of living expenses. One joint account was opened because of a cash back incentive. It is asserted they did not register their de facto relationship until 27 June 2021. By way of explanation the representative asserts that as a matter of Chinese culture a marriage certificate is considered the beginning of the formal marriage. In this case the parties considered that the registration certificate was the commencement of the de facto relationship.

   CONCLUSIONS

9. The circumstances of this case can be summarised as follows. Ms Xiang made an application for a student visa on 5 February 2021. She did not include the applicant as a spouse or dependent in that application. Her application was granted on 28 May 2021. Thereafter the applicant made an application for a student subsequent entry dependent visa on the basis that he was a de facto spouse of Ms Xiang. This application was made on 29 July 2021. The applicant’s application was refused. The delegate concluded that the applicant was the spouse of Ms Xiang at the time the student visa application was made but had not been included. Accordingly, the application was refused on the basis that the applicant did not satisfy the requirements of clause 500.311 (a) (i). The applicant has applied to the Tribunal for a review of that decision.

10. The applicant has conceded relevant dates as follows:

    a) the applicant resided with Ms Xiang at the same premises from 5 January 2020

    b) they open the joint bank account for January 2021

    c) the applicant and Ms Xiang registered a de facto relationship on 27 June 2021.

11. As to the date of the joint bank account the Tribunal observes that it has been provided with a CBA joint bank account statement for the period 7 October 2020 until 3 February 2021. It therefore seems that the joint bank was established at least in October 2020. This bank account statement includes debits for clothing retailer, cosmetics, accommodation in Geelong, restaurants, Officeworks, David Jones and JB hi-fi. It also includes a deposit of $31,500 on 8 December 2020. At the hearing the applicant said the deposit was made by him for the purposes of paying Ms Xiang’s tuition fees.

12. The Tribunal considers the decision in this case is finely balanced.

13. Each of the protagonists denied there was a de facto relationship as far as they were concerned until the registration of the relationship in June 2021. They said there were cultural reasons for considering that they could not be in a de facto relationship prior to that time, and which included they required obtaining their parents’ consent to the relationship, and the fact that such relationships were not permitted pursuant to Chinese law. The Tribunal observes that no legal opinion evidence as to the position at Chinese law has been provided. In any event the characterisation of the nature of the relationship is a matter of objective circumstances and the subjective views of the protagonists may explain events but is not determinative. Further there is no anthropological opinions to support the assertion that cultural basis for concluding they could be no de facto relationship in the absence of certification by a relevant official body.

14. The protagonists denied any sexual relationship prior to the registration of their relationship. This was relied on to negate the finding of a de facto relationship prior to that time. This aspect of the matter has weighed quite heavily on the Tribunal’s mind. That is to say the extent and timing of any sexual relationship between protagonists. The denial of the protagonists has been given weight by the Tribunal. However, it is a matter which the Tribunal notes is in the interest of each protagonists to assert and is for practical purposes incapable of contradiction. In those circumstances the Tribunal turns to consider the objective evidence. It is clear that the protagonists were in a close relationship for a significant period of time. That period of time overlapped with the time between making of the student visa application by Ms Xiang and the determination of an application. However, The Tribunal observes that the absence of a sexual relationship between the protagonist during the relevant period if that were to be the case would not be determinative in any event as to the existence of a de facto relationship.

15. The other evidence which is more telling is the bank accounts. The protagonists chose to establish to joint bank accounts, the first of which appears to have been established in October 2020. Whilst the applicant said that these were for convenience and for the payment of joint liabilities such as rent and utilities that was not always the case. The transaction records include payments for personal items such as restaurant meals, clothing, travel and accommodation, electrical goods, cosmetics and florists. The applicant also paid a substantial amount of money in respect of Ms Xiang’s tuition fees. It is unclear whether he was placed in funds by her father prior to that transfer or after. The applicant and Ms Xiang also went on short sojourns to Geelong and Sydney. These trips were paid for from the joint account.

16. The Tribunal is satisfied that the protagonists were cohabiting at the time of Ms Xiang’s student visa application, they were in a loving and genuine relationship, they had been in such a relationship for some time, they pooled financial resources in the form of two joint bank accounts, the common fund of money was used for purposes including the payment of rent, utilities, restaurants, cosmetics, clothing, electrical goods, and numerous other things. They went on holidays together. The existence of sexual relationship at the relevant time is not critical in order for there to be a de facto relationship at law. The Tribunal concludes that at all relevant times the applicant and Ms Xiang were in a de facto relationship for the purposes of the Act.

17. The applicant has been unable to produce evidence that Ms Xiang included him in her student visa such that he can satisfy the essential requirements of clause 500.311 and sub regulation 2.07AF.

18. In the circumstances, the applicant does not meet the criteria pursuant to clause 500.311.

19. The applicant does not meet the regulatory requirements for the grant of a subsequent entrant student visa because there is no evidence satisfying the criteria that the applicant was included in Ms Xiang’s application as set out in and required by clause 500.311(a)(i) of the Regulations.

20. Having regard to the above findings, the Tribunal is not satisfied that the applicant meets the requirements of clause 500.311(a)(i) of Schedule 2 to the Regulations. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    decision

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

    Peter Booth
    Member

    1.12     Member of the family unit

    (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)A person is a member of the family unit of another person (the family head) if the person is:

    (a)     a spouse or de facto partner of the family head; or

    (b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

    (i)has not turned 18; or

    (ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c)      is a dependent child of a person who meets the conditions in (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    …