Acharya (Migration)

[2018] AATA 594

Acharya (Migration) [2018] AATA 594 (5 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Isha Acharya

CASE NUMBER:  1619719

DIBP REFERENCE(S):  BCC2016/3026144

MEMBER:Wendy Banfield

DATE:5 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 March 2018 at 8:30pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Requirement to list members of family unit in application – Applicant misunderstood requirement – Tribunal does not have discretion to waive requirement

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.07AF(3), Schedule 2, cl 500.311

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 26 October 2016 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 for the visa on 12 September 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not declared to be member of the family unit of the primary applicant at the relevant time.

4. The applicant appeared before the Tribunal on 15 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Mr Subba Limbu. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

   The hearing

6. The applicant gave evidence that she and the primary applicant were culturally married in December 2013, although it is not formally registered. According to the applicant the couple have one daughter and have been in a relationship for nearly 8 years. The applicant said she and her husband are from different castes and they had not married previously as they were waiting for her parents to give their approval. The applicant said she originally came to Australia as a student and her husband came with a former partner.

7. The applicant was asked why she was not declared as a member of the primary applicant’s family unit at the time of application. The applicant said that at the time she still had her own student visa and her husband was her dependent. It was claimed their agent did not explain it properly and they assumed the applicant would be added to her husband’s visa since he had previously been a dependent on her visa.

8. The applicant’s husband said the application had been made through an agent and he had thought his wife would be included. The representative referred to the primary applicant’s passport in particular and said the applicant is listed on it. He also asked the Tribunal to consider that the parties have a child together.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets the criteria for the grant of the student visa as a member of the family unit of the primary applicant. Clause 500.311 states:

    500.311  
    The applicant is 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, and either:

    (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 was included in:

    (i)  the primary person's application under subregulation 2.07AF(3); or

    (ii)  information provided in relation to the primary person's application under subregulation 2.07AF(4); or

    (b)  the applicant became a member of the family unit of the primary person:

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

    (ii)  before the application was made.

    The relevant sub regulation r.2.07AF(3) referred to in Clause 500.311 provides that:

    Applications for Student (Temporary) (Class TU) visas

    … (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.

11. In this case the applicant was not included in her husband’s application for a student visa at the relevant time. The applicant explained that a migration agent had not advised them properly and also, she still held a student visa herself. For these reasons the applicant said she thought she would be included. It was submitted the applicant is shown on her husband’s passport as his wife and that they have a child together. The Tribunal has considered the evidence and the submissions made at the hearing, however, the requirement to include members of the family unit is strict requirement. The family member’s details must be included at the time of application and the Tribunal does not have discretion to waive that requirement.

12. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.311. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Wendy Banfield

    
    

    Member