1514831 (Migration)

[2016] AATA 4581

1514831 (Migration) [2016] AATA 4581 (25 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Umadevi Ramachandren
Master Shreedevan Maheswaran
Master Shaasitharaan Maheswaran

CASE NUMBER:  1514831

DIBP REFERENCE(S):  clf2015/54877

MEMBER:Geraldine Hoeben

DATE:25 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 25 October 2016 at 6:19pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants (the mother/wife and two children as secondary applicants) applied to the Department of Immigration for the visas  on 7 September 2015. The delegate decided to refuse to grant the visas on 16 October 2015.

3. The delegate refused to grant the visas because the secondary applicant did not satisfy the requirements of cl 572.314 of Schedule 2 to the Regulations because while he found that the applicants were members of the family unit of the primary person before the grant of the student visa to the primary person, he, otherwise found that they were not included in the primary person's application dated 14/07/14 or information as required under the regulations before the grant dated 22/08/14.

4. The wife (secondary applicant) appeared before the Tribunal on 02/06/16 to give evidence and present arguments.

5. The secondary applicant/s were represented in relation to the review by their registered migration agent who attended the hearing and made some oral submissions,

6. Having regard to the applicant's current proposed visa , the relevant subclass in this case is Subclass 572,314 (2).

7. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572,314 (2) Clause 572.314 which relevantly states:

   572.314

   1572.3141 (I) 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 :(12.

   [572.3141 (2) The applicant meets this subclause if:

   the applicant became a member of the family unit of the primary person before t          he grant of the student visa to the

   primary person; and

   the applicant was included in the primary person's application under subregulation 2.074F(3) or in information provided in relation to the primary person's application under subregulation 2.07AF(4).

   /572.3141(3) The applicant meets this subclause if the applicant became a member of the family unit of the primary person;

   after the grant of the student visa to the primary person; and

   before the application was made.

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

9. The secondary applicant applied for the 572 visa as a Student Subsequent Entrant with the father/husband as the primary applicant.

10. The secondary applicant stated on form 919 that she was married to the primary person and provided a marriage (29/11/92) certificate as supporting documentation.

11. The records indicate and was confirmed by the secondary applicant that the primary person was granted a student visa on 22/08/14.

12. There was no mention of the secondary applicant/s in the primary person’s application for a 572 visa.

13. The primary applicant did not include any details of any of the persons identified in his 572 student visa application dated 17/07/14 as being his dependents: r.2.07AF (3) or in the information provided in relation to the primary person's application under r.2.07AF(4).

14. The records and the evidence of the secondary applicant was she was married to the primary person before the date of the grant. The secondary applicant could not understand why the primary person had not included her and the two children in his student visa application. She continued that both children were studying in Australia

15. The submissions of the MA were along the lines that in his clients home country marriages are often hidden from people.

16. The relevant parts of the regulation are set out as:

    2.07AF (3)

    An application made on form 157A, 157A (Internet), 167E 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 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.

17. On the basis of the information provided by the secondary applicant/s in her application and the evidence produced at the hearing the Tribunal finds that the secondary applicant/s were members of the family of the primary person before the grant of the student visa to the primary person.

18. The Tribunal further finds that the as the secondary applicant/s were not included in the primary person’s student visa then the secondary applicant/s do not comply with criteria 572.314 (2).

    CONCLUDING PARAGRAPHS

19. As the Tribunal has found that the secondary applicant does not meet an essential requirement of   c1.572.314(2), it also finds that the remaining secondary applicants also do not meet an essential requirement of cl. 572.314 (2).

    DECISION

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

    Geraldine Hoeben
    Member