Thalari (Migration) - [2025] ARTA 907

Thalari (Migration) [2025] ARTA 907 (4 February 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Harish Thalari
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2415204

Tribunal:General Member D. Barker
Place:Sydney
Date: 4 February 2025
Decision:The decision under review is affirmed.

Statement made on 04 February 2025 at 3:28pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – member of the family unit – positive employment prospects – person who holds a student visa – spouse now holds a Temporary Graduate visa – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994, Schedule 2 cl 500.312; r 1.12
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 May 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) (Subsequent Entrant) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 November 2023.The applicant applied for the visa on the basis of being a member of the family unit of his spouse, Ms Ranjitha Gunti, who was at that time the holder of a Student (Temporary) (Class TU) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.312 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily.
The applicant appeared before the Tribunal on 3 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ranjitha Gunti.
For the following reasons, the Tribunal considers the decision under review should be affirmed.
BACKGROUND
The applicant is a national of India and is 30 years old.
The applicant gave evidence at hearing that he came to Australia in September 2028 on a Subclass 500 Student visa with the intention of undertaking a Master of Networking degree at Adelaide University. He indicated that he found studying in Adelaide difficult as he felt isolated and unfamiliar with both the learning environment and wider community in Adelaide. After around sux months, the applicant relocated to Sydney where had an existing social network and enrolled in a Diploma of Leadership and Management, which he completed in 2019. The applicant then enrolled in an Advanced Diploma of Leadership and Management, which he successfully completed in 2021.
After completing the Advanced Diploma of Leadership and Management and in the context of the acute phase of the Covid-19 pandemic the applicant applied for and was granted a sc 408 Temporary Activity visa, which ceased in December 2023. By this stage the applicant was married. The Student (Temporary) (Class TU) (Subsequent Entrant) visa he applied for on the basis of his spousal relationship is the focus of the current review.
The applicant gave evidence that in August 2024 his wife completed the Master of Networking degree, which provided the rational for her Student visa and that she currently holds a Subclass 485 Temporary Graduate visa. The applicant indicated that his wife is seeking employment in which she can apply skills gained in her networking degree and thereby gain experience which will improve her career prospects upon their return to India. In the meantime, the applicant is working as an Uber driver and his wife is working upon a casual basis in a factory. The applicant emphasises the positive prospects both he and his wife have in their home country, where they have strong family ties and good economic prospects. The applicant gave evidence that he and his wife plan is too return to India in around 12 months’ time.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a member of the family unit of a person (the “primary person”) who holds a student visa:
The Tribunal has had regard to all relevant facts and matters, including from information on the Department and Tribunal files and oral evidence given at the hearing.
Is the applicant a member of the family unit of the primary person?
Member of a family unit’ is relevantly defined at r. 1.12(1)(b), which provides:
Reg 1.12    Member of the family unit
(1)   For the definition of member of the family unit in subsection 5(1) of the Act, and subject to
subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a)a spouse or de facto partner of the family head; or
(b)a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c)a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
(i)      does not have a spouse or de facto partner; and
(ii)      is usually resident in the family head's household; and
(iii)     is dependent on the family head.
The Tribunal has reviewed a marriage certificate which was issued by NSW Births Deaths and marriages in November 2023 and accepts the applicant and Ms Ranjitha Gunti are in a valid marriage and satisfies the requirements of Reg 1.12(1)(a).
Is the applicant a genuine applicant for entry and stay
As the applicant has applied for a visa as a member of the family unit of a person who holds a student visa and the visa has been refused because he did not meet cl. 500.312, he is not required to be enrolled in a course or study or to be a genuine applicant for entry and stay as a student but rather, as a member of the family unit of a person who holds a student visa.
500.312Cl
The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa,[1] having satisfied the primary criteria for that visa:
[1] Emphasis added.
(a) having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(b) because the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii) the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) because of any other relevant matter.
The applicant gave evidence at hearing, which was verified by Ms Gunti that she currently holds a Subclass 485 Temporary Graduate visa and that her previous Subclass 500 Student visa ceased on 30 August 2025. The Tribunal has reviewed information available to it which verifies the applicant’s claims with regard to his wife’s current visa status and his own migration history.
On the basis of the available information, the Tribunal finds that the applicant is not a member of the family unit of a person who holds a student visa, as his wife no longer holds a visa of this type. Membership of the family unit of a person holding a student visa is a threshold requirement which must be met in order to qualify for a Student (Temporary) (Class TU) (Subsequent Entrant) visa. There is no evidence or claim that the applicant is a member of the family unit of another person who holds a student visa.
As a consequence, the Tribunal is not satisfied that the applicant meets cl 500.312.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Dates of hearing(s): 3 February 2025