Chen (Migration)  AATA 4282
Ms. Chen (the applicant), a national of Taiwan, started a ‘boyfriend-girlfriend’ relationship with Mr. Kuan since circa 2010 when they were enrolled in high school. Their relationship had continued, and they applied for Working Holiday visas which were granted in 2016. They arrived in Australia on the working holiday visas via the same flight on 27 September 2016. Mr. Kuan applied for a student visa on 14 July 2017, in which Ms. Chen was also included as a secondary applicant. They married in Hong Kong and the corresponding marriage certificate was issued dated 4 September 2017.
On 28 September 2017, a delegate of the Minister granted Mr. Kuan the student visa but refused Ms Chen’s secondary application on the basis that their partner relationship did not satisfy the requirements in clause 500.311 of the Migration Regulations. The delegate noted that in order to meet the criterion, a family member must have become a member of the family unit of the primary person before the grant of the student visa. In the absence of the marriage certificate, the delegate noted that the de facto relationship must have existed for at least the 12 months immediately prior the date of application. I consider that the decision was reasonable in light of the limited evidence before the delegate.
Evidence before the Tribunal
The matter was appealed to the Tribunal in which Member. Meredith Jackson presided the hearing. The applicant submitted to the Tribunal the following documentary evidence:
- Declarations in support of the existence of the relationship, including a statement from the parents of Mr. Kuan and from a former employee of Mr. Kuan in Taiwan;
- Submission by the applicant’s migration agent regarding the matter under review;
- Marriage certificate issued in Hong Kong and dated 4 September 2017;
- Personal submission from the applicant and Mr. Kuan regarding the circumstances of their relationship;
- Document indicating a shared rental arrangement in Byron Bay from 31 January 2017;
- Information regarding joint banking arrangements;
- Photographs taken between 20 December 2017 and July 2019;
- Information regarding an education agency business venture in Taiwan in which Mr. Kuan is described as the director of the company and the applicant is described as a supervisor; and
- The delegate’s statement that the applicant was not declared as a de facto partner of Mr. Kuan in the application for his working holiday visa and he was not declared in hers.
Relevant Statutory Provisions
The starting point is Reg. 1.12 – Member of the family unit. Without evidence to the contrary, it operates to hold that a person is a member of the family unit of another person (the family head) if the person is a spouse or de facto partner of the family head.
As it is the ‘time of decision’ criterion, a spousal relationship can be formed at any point prior to the decision being made by a delegate of the Minister.
500.311 – 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 subregulation 2.07AF(3) — Applications for Student (Temporary) (Class TU) visas; or
- (ii) information provided in relation to the primary person’s application under subregulation2.07AF(4) — Applications for Student (Temporary) (Class TU) visas; 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.
 The Tribunal concludes that you have been in a married relationship since 4 September 2017 and is satisfied that your relationship is genuine and continuing at the time of this decision.
The Member upheld the genuine and continuing nature of the applicant’s marriage with Mr. Kuan since 4 September 2017. By being his spouse, she became a member of his family unit, and it clearly occurred, as demonstrated by the submitted marriage certificate, prior to the time at which application for the student visa was decided. Therefore, the Member should have granted her the visa without looking into the duration of their relationship, and the failure shows misconstruction of the law by the Member.
Moreover, reg. 1.12 is a critical provision in determining whether a person is a member of the family unit of the primary person. It was not cited in the decision, indicating that it was probably not considered by the Member in reaching the decision. This, of itself, is a clear jurisdictional error by the Member.
I consider that their marriage certificate was conclusive evidence which required the delegate’s decision to be overturned through remission or substitution. Instead, the Member pursued an irrelevant exercise, and stated in the following terms at .
 Taking all the above into account, the Tribunal is satisfied that you were in a de facto relationship at a point on or after September 2016, when you arrived in Australia, but not satisfied that you were in a relationship for a period of at least 12 months prior to the application for the initial visa, and finds you were not a member of the family unit on 14 July 2016, the time of the application for the initial visa, and that you therefore cannot satisfy the regulation.
Firstly, the Member erred in her failure to draw a distinction between a de facto relationship and a spousal relationship. A spouse is defined in section 5F of the Migration Act as a person in a married relationship with another person. Subsection (2) elaborates on a married relationship, which would involve an exercise of factual finding. I reasonably predict that if the Member conducted the exercise, she would have been satisfied that the married relationship had existed for the applicant. However, a de facto relationship is subject to different criteria stipulated in reg. 2.03A. The Member erroneously held that the applicant was a de facto partner when she was, in fact, a spouse of Mr. Kuan.
Secondly, the Member failed to cite subregulation 2.03A(3), which appeared to be the primary ground on which the Member sought to invoke in her decision, by requiring the de facto relationship to be of a minimum 12 months duration, ending immediately before the date of the application.
Thirdly, as the Member proceeded on the basis that the applicant was a de facto partner but for a period less than 12 months, the Member was required to consider the exception of waiver pursuant to subregulation (5), that was whether the relationship was registered within the meaning of section 2E of the Acts Interpretation Act 1901. The answer was the registration did not necessitate the relationship to be 12 months in duration at the time of application. In this context, the marriage certificate amounts nothing less than the de facto registration on a comparative scale.
The Member’s failure in the first two (2) instances: failure to draw the distinction; and failure to cite the legislation under her deliberation, would not have met the common law threshold of materiality. In Hossain v Minister for Immigration and Border Protection  HCA 34, Justice Edelman fundamentally related the materiality of an error to the question – “Did the error deprive the applicant of a successful outcome?” The two (2) instances would have been answered in negative. Nevertheless, the Member’s failure to waive the 12-month requirement was a matter of significance, that was a strong indicator of a jurisdictional error.
I consider the decision by the Member was wrong and erroneous. As a result, the applicant was denied the student visa as the secondary applicant of her husband, to which she was lawfully entitled. She could appeal this decision for judicial review, incurring considerable legal fees which is quite excessive for a 27-year old person. Otherwise, she would have to live with this refusal record which would likely be disclosed jeopardizing future visa applications if she decide to migrate to any country, including Australia. This was indeed unfair for Ms Chen and her loving husband, Mr Kuan.