Rakthongchan (Migration)

This matter concerned an application for a Subclass 500 (Student) visa by Mr Rakthongchan, who sought to be recognised as a member of the same family unit as the primary visa holder. The dispute arose because Mr Rakthongchan was not included in the primary applicant's initial student visa application. The Administrative Appeals Tribunal (AAT) was required to determine whether Mr Rakthongchan satisfied the criteria for inclusion as a secondary applicant.

The central legal issue before the Tribunal was whether Mr Rakthongchan met the requirements of cl.500.311 of Schedule 2 to the Migration Regulations. This clause outlines the conditions under which a member of the family unit can be considered for a student visa, specifically addressing whether the de facto relationship existed before or after the primary applicant's visa was granted and whether the applicant was included in the primary application.

The Tribunal considered evidence presented by Mr Rakthongchan, including statements from his de facto partner and statutory declarations from witnesses. While the de facto partner initially stated their relationship began after the primary applicant's visa was granted, other evidence, such as a relationship certificate application, lease arrangements, and bank account details, indicated the de facto relationship commenced on 17 July 2017, which was before the primary applicant's visa was granted. The Tribunal found this evidence sufficient to satisfy cl.500.311.

Consequently, the Tribunal remitted the application for a Student (Temporary) (Class TU) visa for reconsideration by the Minister, with a direction that Mr Rakthongchan met the criteria specified in cl.500.311.