Zhou (Migration)

The Administrative Appeals Tribunal reviewed a decision to refuse a student visa application made by the applicant, who sought to enter Australia as a subsequent entrant dependent on his de facto spouse, Ms. Xiang. Ms. Xiang had previously been granted a Student (Temporary) (Class TU) visa, subclass 500, on 28 May 2021. The applicant's subsequent application for a dependent visa, lodged on 29 July 2021, was refused by the Department on the grounds that he was Ms. Xiang's spouse at the time of her initial visa application but had not been included as part of that application, thus failing to meet the requirements of clause 500.311(a)(i) of the Migration Regulations.

The primary legal issue before the Tribunal was whether the applicant was the de facto spouse of Ms. Xiang at the time she lodged her student visa application on 5 February 2021. The applicant contended that they did not satisfy the definition of a de facto relationship under section 4AA of the Family Law Act 1975 (Cth) at that time. Arguments were presented that Ms. Xiang's presence at the applicant's residence from January 2020 was not permanent, that she maintained her own apartment, and that her visits were primarily related to caring for the applicant's cat. Furthermore, it was argued that there was no evidence of joint assets or significant financial connections, with joint accounts allegedly used only for convenience, and that the de facto relationship was only formally registered on 27 June 2021, after Ms. Xiang's visa was granted.

The Tribunal considered the evidence presented, including the applicant's concessions regarding cohabitation from 5 January 2020, the opening of a joint bank account in January 2021, and the registration of their de facto relationship on 27 June 2021. However, the Tribunal noted that a joint bank account statement provided covered the period from 7 October 2020 to 3 February 2021, indicating the account was established at least by October 2020. This statement showed joint expenses for various items and a significant deposit of $31,500 on 8 December 2020, which the applicant stated was for Ms. Xiang's tuition fees. The Tribunal found that the circumstances, including the joint bank account and the substantial deposit for tuition, indicated a de facto relationship existed prior to Ms. Xiang's visa application, and that the applicant's explanation regarding cultural norms for formalising relationships did not negate this finding. The Tribunal affirmed the delegate's decision.