1501962 (Migration)

[2016] AATA 4190

1501962 (Migration) [2016] AATA 4190 (21 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Moneerah Alqahtani
Miss Fatimah Alqahtani
Master Sultan Alqahtani
Master Majed Alqahtani
Master Naif Alqahtani

CASE NUMBER:  1501962

DIBP REFERENCE(S):  BCC2015/194429

MEMBER:Adrian Ho

DATE:21 July 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Student (Temporary) (Class TU) visas.

Statement made on 21 July 2016 at 6:09pm

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 22 January 2015 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 16 January 2015.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy Clause 573.314.

4. By letter dated 12 April 2016, the Tribunal wrote to the applicant pursuant to s.359(2) to provide information relevant to a consideration of Clause 573.314.

5. In the invitation the applicant was advised that, if the information was not provided in writing by a date being the end of the specified period, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant has not provided the information within the prescribed period, or to date.  In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

7. The applicant was advised of the loss of the right to a hearing. 

8. The tribunal accommodated a request for additional time in May 2016 where the representative sought more time to submit further material to the tribunal.  No further material has been received.

9. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

10. The applicants were represented in relation to the review by their registered migration agent.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant does not claim to meet the primary criteria for any subclass of the student visa and seeks to meet the secondary criteria as a member of the family unit of a person who holds a student visa.

13. Clause 573.314 requires the following:

    (1)  If the applicant claims to be a member of the family unit of a person (the primary person) who holds a student visa having satisfied the primary criteria for that visa, the applicant meets subclause (2) or (3).

    (2)  The applicant meets this subclause if:

    (a)  the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person; and

    (b)  the applicant was included in the primary person's application under subregulation 2.07AF(3) or in information provided in relation to the primary person's application under subregulation 2.07AF(4).

    (3)  The applicant meets this subclause if the applicant became a member of the family unit of the primary person:

    (a)  after the grant of the student visa to the primary person; and

    (b)  before the application was made.

14. Regulation 2.07AF requires the following:

    Applications for Student (Temporary) (Class TU) visas

    (1)  This regulation applies in respect of an application for a Student (Temporary) (Class TU) visa.

    (2)  Despite anything in regulation 2.07, an application may be made on behalf of an applicant.

    (3)  An application by a person who seeks to satisfy the primary criteria (the primary applicant ) must include:

    (a)  the name, date of birth and citizenship of each person who is a member of the family unit of the applicant at the time of the application; and

    (b)  the relationship between the person and the applicant.

    (4)  If a person becomes a member of the family unit of the primary applicant after the time of application and before the time of decision, the primary applicant must inform the Minister, in writing, of:

    (a)  the name, date of birth and citizenship of the person and

    (b)  the relationship between the person and the primary applicant.

    (5)  Subregulations (3) and (4) apply:

    (a)  whether or not the member of the family unit is an applicant for a Student (Temporary) (Class TU) visa; and

    (b)  if the member of the family unit is not an applicant for a Student (Temporary) (Class TU) visa--whether or not the member of the family unit intends to become an applicant for a Student (Temporary) (Class TU) visa.

    Note:         member of the family unit of an applicant for a Student (Temporary) (Class TU) visa is defined in subregulation 1.12(2).

15. In the copy of the delegate’s decision the applicant provided to the tribunal, the delegate notes that the applicant claims to have married her husband, the holder of the student visa, in 2005.  That fact is not disputed by the applicant.  The delegate notes that her husband applied for a student visa in July 2014 and failed to declare the applicant in that application.

16. The representative in written submissions sought more time to investigate if the present applicant was in fact declared in the student visa application of July 2014.  The tribunal acceded to a request to delay its decision.  Now more than 2 months later no further material has been submitted.  The tribunal considers the applicants have had sufficient time in which to furnish material.

17. On the evidence, the tribunal finds that the applicant became a member of the family unit of her husband before the grant of the student visa to her husband.  Therefore it is cl.573.314(2) that applies, and not cl.573.314(3).

18. Clause 573.314(2)(b) requires the existence of the applicant to have been disclosed in one of two possible ways specified in r.2.07AF.  As the applicant became a member of the family unit of her husband before her husband’s visa application was made, r.2.07AF(4) does not apply.  Regulation 2.07AF(3) requires pertinent details of the applicant to have been included in her husband’s visa application.

19. On the evidence, these details were not included and the applicant was not, perhaps by innocent omission, included in that visa application.

20. For these reasons, cl.573.314(2) is not met and cl.573.314 is not met more generally.

21. For these reasons, the Tribunal finds that criteria for the grant of a Subclass 573 visa are not met by the applicant.

22. There is no evidence that the secondary visa applicants can meet either the primary or secondary criteria for the visa, and the tribunal finds they cannot.

23. The decision under review must be affirmed.

    DECISION

24. The Tribunal affirms the decisions not to grant the visa applicants Student (Temporary) (Class TU) visas.

    Adrian Ho

    
    

    Member

    ATTACHMENT – Extracts from the Migration Regulations 1994

    573.223(1)     The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, 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

    (iv)any other relevant matter; and

    (b)the applicant meets the requirements of subclause (1A) or (2).

    (1A)If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

    (a)the applicant gives the Minister evidence that the applicant has:

    (i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and

    (ii)educational qualifications required by the eligible education provider; and

    (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)any other relevant matter; and

    (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)the costs and expenses required to support the applicant during the proposed stay in Australia; and

    (ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.

    (2)If subclause 573.223(1A) does not apply:

    (a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

    (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)any other relevant matter; and

    (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.