1503266 (Migration)

[2015] AATA 3460

1503266 (Migration) [2015] AATA 3460 (8 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JUNG HWA KIM

CASE NUMBER:  1503266

DIBP REFERENCE(S):  CLF2015/7500

MEMBER:Gabrielle Cullen

DATE:8 October 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa

Statement made on 08 October 2015 at 4:01pm

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 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 6 February 2015. The applicant applied as a secondary applicant on the basis that he is the spouse of the primary applicant, Ms Danda Lee. He indicated they were married on 18 December 2012.

3. The delegate refused the visa application as the applicant did not satisfy cl.572.314 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the applicant was a member of the family unit of Ms Danda Lee for the purposes of a student visa application. He noted that when Ms Danda Lee lodged her application for a student visa on 22 July 2013, more than seven months after the date of marriage no members of the family unit were declared, nor were they declared up until the time of the grant of the student visa to Ms Danda Lee on 13 August 2013.

4. The applicant applied for a review of the delegate’s decision.

5. The applicant appeared before the Tribunal on 9 September 2015 and 8 October 2015 to give evidence and present arguments. Ms Lee also gave evidence at both hearings. The applicant and Ms Lee were assisted with an interpreter in the Korean and English languages. The applicant’s representative attended the hearings.

6. The Tribunal explained the requirements of cl.572.314.

7. The applicant and Ms Lee provided oral and written evidence as to the genuine nature of the relationship. They answered questions as to the financial aspects of the relationship, nature of the household, social aspects of the relationship and the nature of their commitment to each other consistently, for the Tribunal to be satisfied they are in a genuine spousal relationship. They confirmed they were married on 18 December 2012 and have been in a genuine spousal relationship since that date. Documents were also provided to support that their spousal relationship is a genuine one; including evidence of transfer of money between the two, joint tenancy agreement and numerous photographs.

8. The applicant and the witness indicated that prior to Ms Lee’s application for a visa in July 2013 they had notified the Department they were in a spousal relationship. They explained that Ms Lee submitted a dependent application to the Department on 10 January 2013 and declared the marriage and relationship in that application. Ms Lee indicated that the Department had therefore been informed of their relationship. Ms Lee indicated it was a mistake that she did not refer to the applicant as her spouse in her application for her own student visa on 22 July 2013. They both claimed it was as a result of poor English and lack of migration advice, and as they believed the Department had already been informed. A form 1022, Notification of change in circumstances was submitted to indicate the existence of the relationship but this was not submitted until 24 September 2015.

9. The applicant submitted a CoE to undertake a Bachelor of Theology from 29 February 2016 to 16 June 2017.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. The issue in the present case is whether the applicant satisfies the criteria set out in cl.572.314.

    572.314

    [572.314] (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).

    [572.314] (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).

    [572.314] (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.

    [2.07AF] (3)      An application made on form 157A, 157A (Internet), 157E or 157G 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.

    [2.07AF] (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. 

12. The Tribunal found the applicant and the witness to be entirely credible witnesses and accepts that from 18 December 2012, when they were married, they have been and continue to be in a genuine spousal relationship. It finds that Ms Lee did not include or refer to the applicant in her application for a student visa in July 2013. The Tribunal accepts it was as a result of a mistake, as their English is not good and they did not have migration advice. The Tribunal accepts the applicant and Ms Lee’s evidence that they did not try to deceive the Department. It accepts it was a genuine error for the reasons they claim. It accepts that in a previous application they had declared their relationship.

13. The Tribunal finds that Ms Lee applied for a student visa on 22 July 2013 and that the visa was granted on 13 August 2013. The Tribunal finds that Ms Lee did not refer to or claim the applicant to be a member of her family unit, either in the application or up until the time of the grant of her student visa on 13 August 2013, even though the applicant and Ms Lee had been in a genuine spousal relationship since 18 December 2012.

14. The Tribunal accepts that the applicant became a member of the family unit of Ms Lee before Ms Lee applied for and was granted a student visa. The Tribunal finds the applicant was not included in Ms Lee’s application under r.2.07AF(3) or in information provided in relation to Ms lee’s application under r.2.07AF(4). The Tribunal finds that Ms Lee did not inform the Minister, in writing, of the name, date of birth and citizenship of the applicant and the relationship between them in her application for a student visa. 

15. Accordingly, the Tribunal finds that the applicant does not satisfy cl.572.314 of Schedule 2.

16. There is no suggestion that the applicant meets any of the primary criteria for the grant of a student visa or the requirements of any other subclasses within the Student Class TU visa class.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Gabrielle Cullen

    
    

    Member