Dwijaksara (Migration)

The matter before the Tribunal concerned an application for a Subclass 500 (Student) visa by Mr. I Wayan Arya Dwijaksara, who sought to join his partner, Ms. Kadek Desi Korina, who held a student visa. The dispute arose because Mr. Dwijaksara was not included as a member of Ms. Korina's family unit in her initial student visa application. The Tribunal was tasked with determining whether Mr. Dwijaksara met the criteria for a subsequent entrant student visa.

The central legal issue was whether Mr. Dwijaksara satisfied clause 500.311 of Schedule 2 to the Migration Regulations. This clause requires that a secondary applicant be a member of the family unit of the primary visa holder and that they either became a member of the family unit before the primary person's visa was granted and were included in the application, or became a member of the family unit after the primary person's visa was granted but before the secondary applicant's own application was made. The Tribunal had to consider the nature of the relationship between Mr. Dwijaksara and Ms. Korina at the relevant times, particularly in light of their declared de facto relationship and subsequent marriage.

The Tribunal reasoned that at the time Ms. Korina applied for her student visa, she declared she had never been married or in a de facto relationship. Consequently, Mr. Dwijaksara was not included in her application as a family member. Although they later married in a religious ceremony, this occurred after Ms. Korina's student visa was granted and after Mr. Dwijaksara's own application was lodged. The Tribunal noted that the law of the applicant's home country did not recognise the concept of a de facto partnership, which was relevant to the assessment of their relationship status at the time of Ms. Korina's application. Therefore, the Tribunal concluded that Mr. Dwijaksara did not meet the criteria under clause 500.311.

Accordingly, the Tribunal affirmed the decision not to grant Mr. Dwijaksara a Subclass 500 (Student) visa.