Zhang (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs not to grant a Subclass 500 (Student) visa to the applicant, Ms Zhang. The applicant sought to be recognised as a member of the family unit of Mr Siyuan Wu, the primary visa applicant, who held a student visa. The Administrative Appeals Tribunal (AAT) was required to determine whether Ms Zhang met the criteria for a subsequent entrant dependent student visa.

The central legal issue before the Tribunal was whether Ms Zhang satisfied clause 500.311 of Schedule 2 to the Migration Regulations 1994. This clause requires that a member of the family unit of a primary visa holder either was included in the primary person's application or became a member of the family unit after the primary visa was granted and before the secondary applicant's application was made. Specifically, the Tribunal had to consider whether Ms Zhang was declared as a member of Mr Wu's family unit at the time of his student visa application.

The Tribunal noted that Mr Wu had selected 'married' on his visa application but indicated that he had no accompanying family members. Ms Zhang later explained this discrepancy as a mistake due to a misunderstanding of the question. The delegate had found that Mr Wu did not include Ms Zhang as a family member in his application, and therefore, she did not meet the criteria under cl.500.311. While Ms Zhang provided evidence of a long-term and genuine relationship with Mr Wu, including a marriage certificate and joint financial documents, the Tribunal found that this evidence did not overcome the failure to include her in the primary applicant's visa application as required by the regulations.

Consequently, the Tribunal concluded that the criteria for the grant of a Subclass 500 (Student) visa were not met by the applicant. The decision under review, which affirmed the refusal to grant the visa, was therefore affirmed by the Tribunal.