1505868 (Migration)

[2015] AATA 3554

1505868 (Migration) [2015] AATA 3554 (22 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rasha ALOBAID
Master Abdulrahman ALEID
Ms Lara ALEID

CASE NUMBER:  1505868

DIBP REFERENCE(S):  CLF2015/16441

MEMBER:Susan Pinto

DATE:22 October 2015

PLACE OF DECISION:  Sydney

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

Statement made on 22 October 2015 at 2:57pm

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 10 April 2015 to refuse to grant the applicants Student (Temporary) (Class TU) Subclass 573 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Student visas on 17 March 2015. The delegate refused to grant the visa on the basis that the applicants did not meet cl.573.314 which requires that they were included in the visa application of the primary visa applicant (the first named applicant’s husband and the second and third named applicant’s father) when that application was made on 14 February 2014 and granted on 19 February 2014.  

3. The applicants appeared before the Tribunal on 22 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. An application by a primary applicant must include the details of each person who is a member of their family unit at the time of application.[1] If a person becomes a member of the family unit of the primary applicant after the application is made but before it is decided, the primary applicant must give written notice to the Minister of the name, date of birth and citizenship of the family member as well as their relationship to the primary applicant.[2] The requirements to provide such details to the Minister apply whether or not the family member is an applicant or intends to be an applicant, for a student visa.[3]  

   [1] r.2.07AF(3).

   [2] r.2.07AF(4).

   [3] r.207AF(5).

6. Clause 573.314 relevantly states:

   (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.

7. The applicant provided a copy of the delegate’s decision record to the Tribunal. The decision record indicates that the applicants lodged this application as dependents of Mr Salman Abdulrahman S. Aleid, a citizen of Saudi Arabia born on 5 August 1981. The first named applicant is the wife of Mr Salman Abdulrahman S. Aleid and the second and third named applicants are his son and daughter. Their son was born on 19 July 2011 and their daughter was born on 23 September 2013.

8. According to the current application the applicant and Mr Aleid were married in 2010 (exact date not specified). The evidence in the delegate’s decision record indicates that the applicants were not included in the application of Mr Aleid, their husband and father, and the first named applicant did not become a member of his family unit after the grant of his Student visa. The first named applicant had become a member of Mr Aleid’s family unit when they married in 2010 at which time she became the spouse of Mr Aleid, which is included in the definition of ‘member of the family unit’ in r.1.12 of the Regulations. Mr Aleid’s two children also did not become Mr Aleid’s dependent children, which is also included in the definition of ‘member of the family unit’ in r.1.12, after the grant of the visa. The second and third named applicants become members of the family unit of Mr Aleid when they were born in July 2011 and September 2013.

9. The Tribunal has had regard to the applicant’s and Mr Aleid’s evidence during the hearing which indicates that their migration agent did not include any details of the applicant and their children in the children and that this may have been due to the fact that they wished to first come to Australia on visitor visas to see whether they wished to stay. As explained during the hearing, this is a mandatory requirement. For these reasons, the Tribunal is not satisfied that the applicants meet cl.573.314 of Schedule 2 to the Regulations.

10. As the Tribunal has found the applicants do not meet cl.573.314 it follows that the applicants cannot be granted visas of that subclass. As no evidence has been provided on which the Tribunal could be satisfied that the applicants meet the criteria for any of the other Student (Temporary)(Class TU) visa subclasses, the decisions under review must be affirmed.

    DECISION

11. The Tribunal affirms the decisions under review not to grant the applicants Student (Temporary)(Class TU) visas.

    Susan Pinto
    Member