Agarwal (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a Subclass 500 (Student) visa as a secondary applicant, being the spouse of the primary visa holder. The dispute centred on whether the applicant met the criteria for inclusion as a member of the family unit of the primary applicant, who had already been granted a student visa.

The core legal issue before the Tribunal was whether the applicant satisfied clause 500.311 of Schedule 2 to the Migration Regulations 1994. This clause requires that a secondary applicant be a member of the family unit of the primary person who holds a student visa, and that either the applicant became a member of the family unit before the primary visa was granted and was included in the primary person's application, or became a member of the family unit after the primary visa was granted but before the secondary application was made. The Tribunal also had to consider the requirements of regulation 2.07AF, which outlines the obligations of a primary applicant to include family members in their application or notify the Minister of changes in family unit status.

The Tribunal found that the primary applicant applied for her student visa on 23 November 2017, and it was granted on 5 December 2017. The applicant and the primary applicant married on 26 November 2017, meaning the applicant became a member of the family unit after the primary applicant's visa application was lodged but before it was granted. Crucially, the primary applicant did not include the applicant in her visa application, nor did she inform the Department of the change in her family unit status as required by regulation 2.07AF(4). Therefore, the Tribunal concluded that the applicant did not meet the criteria under clause 500.311(a) or (b).

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 500 (Student) visa. The applicant did not claim to meet the criteria for any other visa class.