1501304 (Migration)

[2016] AATA 3001

1501304 (Migration) [2016] AATA 3001 (4 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mayada Khalil

CASE NUMBER:  1501304

DIBP REFERENCE(S):  CLF2011/143672

MEMBER:Sean Baker

DATE:4 January 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

·cl.573.322 of Schedule 2 to the Regulations.

Statement made on 04 January 2016 at 1:34pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 October 2011 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 30 August 2011 as a member of the family unit of her husband, Mr Ghassane El Khodr. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.573.322 because at that time Mr El Khodr was not the holder of a Subclass 573 visa. The applicant applied for review and a different Tribunal acknowledged the application and invited the applicant to provide any material for the case. The Tribunal then invited the applicant to a hearing and again invited her to provide any material for the case. The Applicant and her husband were invited to a hearing on 21 June 2013. They did not attend and did not make any contact with the Tribunal. That Tribunal decided not to reschedule the hearing and then affirmed the decision.

3. The applicant applied to the Federal Circuit Court. The matter was remitted to the Tribunal by consent on the basis that the previous Tribunal’s exercise of its discretion under s.362B was legally unreasonable given the circumstances of the matter. 

4. The applicant appeared before the Tribunal on 24 March 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant is a member of the family unit of her husband, Mr Ghassane El Khodr.

7. On the evidence before me, including their marriage, residence together and children, evidence of which is on file, I find that the applicant is the spouse, and therefore a member of the family unit of Mr Ghassane El Khodr. I further note that I have remitted Mr El Khodr’s application finding that he meets primary criteria for the grant of the visa.

8. Given these findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

9. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

   ·     cl.573.322 of Schedule 2 to the Regulations.

   Sean Baker
   Member