Agarwal (Migration)

[2019] AATA 159

Agarwal (Migration) [2019] AATA 159 (24 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dhananjay Agarwal

CASE NUMBER:  1805500

HOME AFFAIRS REFERENCE(S):           BCC2017/4737481

MEMBER:M. Edgoose

DATE:24 January 2019

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 24 January 2019 at 3:06pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – secondary applicant –spouse of primary applicant – in a relationship before visa was granted – not included in primary person’s visa application – decision under review affirmed 

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.07AF 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 Home Affairs on 12 February 2018 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 December 2017. 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 a member of the family unit of the primary person prior to the grant of his student visa, but was not included as a family unit member in that application. Accordingly the applicant did not satisfy cl.500.311.

4. The applicant appeared before the Tribunal via telephone on 21 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an accredited interpreter in the Hindi (Indian) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. The issue in this case is whether the applicant meets cl.500.311 of Schedule 2 to the Regulations which relevantly 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;

   (ii)and before the application was made.

8. Regulation 2.07AF requires the following:

   (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)  Sub regulations (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.

9. The applicant informed the Tribunal that his wife, the primary person, applied for her student visa on 23 November 2017. The student visa was granted on 5 December 2017. The primary person did not include her husband on the application or make contact with the Department to have him added.

10. The applicant and his wife, the primary person, married on 26 November 2017 (AAT Folio 10). The Tribunal accepts that as of 26 November 2017 the applicant became a member of the family unit.

11. The Tribunal asked the applicant if he had become a member of the family unit of the primary person before the grant of the primary person’s student visa. The applicant responded yes. The Tribunal accepts the applicant’s response.

12. The Tribunal subsequently asked the applicant did the relationship commence before the primary person (the applicant’s wife) applied for the student visa. The applicant responded yes. The Tribunal accepts the applicant’s response.

13. The Tribunal asked the applicant if his details were included in the primary person’s (the applicant’s wife) student visa application. The applicant responded no. In these circumstances r.2.07AF(4) is not satisfied as the primary person’s student visa application did not include the name, date of birth, citizenship and relationship between the primary person and the applicant. As the applicant was not included in the primary person’s visa application, the applicant does not satisfy cl.500.311.

14. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.311.

15. 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

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

    M. Edgoose
    Member