Lee (Migration)

This matter concerned an application for a Subclass 500 (Student) visa. The applicant sought to be included as a dependent on the primary person's visa application. The primary person had initially declared her relationship status as "separated" when lodging her visa application and did not include any dependent applicants. Subsequently, the applicant applied to be added as a dependent, providing a marriage certificate. The Tribunal was required to determine whether the applicant met the criteria for inclusion as a member of the family unit.

The central legal issue was whether the primary person had satisfied the requirements of clause 500.311 of Schedule 2 to the Migration Regulations 1994, which outlines the criteria for a member of the family unit of a primary student visa holder. Specifically, the Tribunal had to consider whether the applicant became a member of the family unit of the primary person before the grant of the primary person's visa and whether this had been properly declared in accordance with regulation 2.07AF.

The Tribunal found that the applicant and the primary person were married before the primary person's student visa was granted. While the primary person had initially declared herself as separated, she later submitted a notification of change in circumstances indicating she had reunited with her husband and requested his inclusion. The Tribunal noted that the primary person failed to declare the applicant as a dependent as required by regulation 2.07AF, which meant she did not satisfy clause 500.311 at the time of her initial application. However, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant met the criteria for a Subclass 500 (Student) visa.