Khonthas (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Khonthas, an applicant for a Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector visa. The dispute centred on whether Khonthas qualified as a member of the family unit of the primary visa holder, Patchara Saipattana, as required by clause 573.314 of the Migration Regulations. The primary person had declared Khonthas as his de facto partner in his visa application, stating they had been cohabiting since 17 November 2014.

The core legal issue before the Tribunal was to determine if Khonthas met the requirements of clause 573.314, which is a time of application requirement. This clause stipulates that an applicant claiming to be a member of the family unit must have become so before the primary person was granted their student visa and must have been included in the primary person's application under subregulation 2.07AF. Subregulation 2.07AF(3) requires that such an application include the name, date of birth, citizenship, and relationship of each person who is a member of the family unit at the time of the application. Regulation 1.03 defines a member of the family unit to include a spouse or de facto partner.

The Tribunal found that the primary person declared Khonthas as his de facto spouse in his visa application lodged on 25 May 2015, with the visa subsequently granted on 29 May 2015. The Tribunal was satisfied, based on substantial evidence including bank accounts, photographs, lease agreements, and travel information, that Khonthas and the primary person were living together in a de facto relationship. Crucially, their relationship had been registered in Queensland on 17 November 2014. The Tribunal concluded that the primary person had provided sufficient information to meet the requirements of subregulation 2.07AF(3) in his visa application.

Consequently, the Tribunal found that Khonthas was a member of the family unit of the primary person and that clause 573.314 was met. The Tribunal remitted the application for a Student (Temporary) (Class TU) visa for reconsideration, directing that Khonthas met the specified criteria for a Subclass 573 Higher Education Sector visa.