Do (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa (Subclass 500) by Mr Do, who sought to be recognised as a subsequent entrant and member of the same family unit. The decision under review was made by a delegate of the Department of Home Affairs, and the case was heard by Senior Member Michael Ison of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Mr Do satisfied the criteria for a Subclass 500 visa, specifically cl.500.311 of Schedule 2 to the Migration Regulations 1994. This clause requires an applicant to be a member of the family unit of a primary visa holder who has satisfied the primary criteria for a student visa, and to have become a member of that family unit either before the primary visa was granted and been included in the primary person's application, or after the primary visa was granted but before the subsequent application was made. The Tribunal also considered the definition of "member of the family unit" as set out in subregulation 1.12(6), which includes a spouse or de facto partner.

The Tribunal reasoned that for Mr Do to satisfy cl.500.311, he needed to demonstrate he was a member of the family unit of a primary student visa holder. While the Tribunal acknowledged that a de facto partner could be considered a member of the family unit, it found that the evidence did not establish that Mr Do met the requirements of cl.500.311. This was because the primary applicant had not informed the Department in writing of Mr Do's relationship as required by subregulation 2.07AF(4) when he became a member of the family unit after the primary visa was granted. Furthermore, the Tribunal noted that the primary criteria for the student visa, including proof of course enrolment as per cl.500.211, had not been satisfied.

Consequently, the Tribunal affirmed the decision of the delegate to refuse to grant Mr Do a Student (Temporary) (Class TU) visa.