Alves Pires (Migration)

[2024] AATA 1464

Alves Pires (Migration) [2024] AATA 1464 (23 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pedro Augusto Alves Pires

CASE NUMBER:  2401105

HOME AFFAIRS REFERENCE(S):          BCC2023/3625591

MEMBER:Jennifer Cripps Watts

DATE:23 May 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a 500 (Student) visa:

· Sub-clause 500.312 of Schedule 2 to the Regulations

Statement made on 23 May 2024 at 4:00pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – member of the family unit – de facto relationship – Brazilian Declaration of Civil Union – plans to return to Brazil – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5, 65; Ministerial Direction 103
Migration Regulations 1994, Schedule 2 cl 500.312; rr 1.03, 1.05, 1.09, 1.12

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

2. The applicant applied for the visa on 27 June 2023. The delegate refused to grant the visa on 10 January 2024 on the basis that the applicant did not satisfy the requirements of cl 500.312 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 500.312 of Schedule 2 relevantly requires the applicant to be a genuine applicant for entry and stay as a member of the family unit of a person who has satisfied the primary criteria for the visa and who holds the visa. Relevantly in this case, the person is the applicant’s de facto partner, who was granted and holds a subclass 500 student visa.

3. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The applicant’s visa was refused because the Minister was not satisfied that what is commonly referred to as the Genuine Temporary Entrant (GTE) requirement was met by the applicant. The issue on review for the Tribunal is whether the applicant meets the GTE requirement in cl 500.312 of Schedule 2 to the Regulations (extracted):    

   500.312

   The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa:

   (a)       having regard to:

   (i)        the applicant’s circumstances; and

   (ii)       the applicant’s immigration history; and

   (iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)      any other relevant matter; and

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)       of any other relevant matter.

5. The Tribunal must be satisfied as to all of the matters below to find that the applicant meets the GTE criteria, as the secondary applicant, for the grant of the subclass 500 student visa that is the subject of this review: cl 500.312 of Schedule 2 to the Regulations.

   a.the applicant and the primary visa holder are in a de facto relationship as it is described in s 5CB of the Act;

   b.the applicant is a member of the primary visa holder’s family unit;

   c.the applicant’s de facto partner satisfied the primary criteria for, and holds, the student visa;

   d.the applicant is a genuine applicant for entry and stay as a member of the family unit of the person who holds the student visa.

   Background

6. The applicant, an IT Planning Analyst from Brazil, and Ms Fonseca, a Chemical Engineer from Colombia, (the parties) claim to be in a de facto relationship.  Ms Fonseca has lived and studied in Brazil for a number of years and is described by the applicant as having ‘migrated’ to Brazil and become part of his Brazilian family.  The parties have resided in Perth since January 2024.  They have provided the original document and a certified translated copy of it from Brazil titled ‘Civil Registry of Natural Persons and Notary Office’ certifying their ‘Declaration of Civil Union’ issued on 11 September 2021 on the basis of their being ‘in a stable civil union through a public, continued, and lasting coexistence, with the purpose of establishing a family.  The personal relationship between the partners follows the duties of loyalty, respect, assistance, support, and education of their children according to articles 1723 and 1724 of the Brazilian Civil Code’ since 15 February 2019.  It is confirmed that the parties signed the document.  

7. Ms Fonseca first studied English in Australia and has now progressed to a Project Management course.  The applicant is supporting Ms Fonseca by accompanying her while she studies in Australia.  The applicant has provided the Tribunal with a written statement which indicates to the Tribunal that they have well formed plans for their time in Australia together and for their future.  They intend, once Ms Fonseca has completed her studies in Australia, to return to Brazil ‘with improved knowledge and a broader vision of the world’. 

8. The applicant includes in his statement, dated January 2024, that his whole family is in Brazil.  Ms Fonseca is originally from Colombia, but migrated to Brazil to pursue better opportunities, namely studying at the University of Campinas (Unicamp).  Ms Fonseca was awarded a Master of Food Engineering from Unicamp.  Her thesis director was Professor Dr. Vivaldo Junior, who has offered Ms Fonseca to continue ‘the project’ which is entitled ‘Enzymatic Inactivation of Tomato Pulp assisted by Microwave’.  The applicant says that Ms Fonseca considers that the Project Management Course, in English, will enhance her ability to ‘lead teams’.

9. The applicant says his and Ms Fonseca’s primary motivations for planning to return to Brazil are for Ms Fonseca to progress her academic career, the applicant to resume his IT career and for them to re-establish their lives there together among the applicant’s family.  However, before they do so, the applicant states that he and Ms Fonseca will benefit from the more advanced English language skills acquired while studying and living in Australia to travel to other English speaking countries such as New Zealand and the United States of America.

   The applicant has provided a copy of a letter signed Vagner Alves, Coordinator of Business Relations, dated 25 September 2023 on the letterhead of Unimed Campinas, CNPJ: 46.124.624/00011.  The letter includes that they intend to ‘rehire’ him, that the applicant completed his MBA studies in 2023 and they consider he ‘will be able to demonstrate his proficiency in English, which will be of great value to the company’.

   Are the applicant and Ms Fonseca in a de facto relationship?

10. For the applicant to be a member of the primary visa applicant’s family unit, relevantly in this case her de facto partner, the parties must be in a de facto relationship as it is defined in s 5CB(2) the Act, which provides that:

    ·the couple must not be married to each other or related by family;

    ·they must have a mutual commitment to a shared life to the exclusion of all others;

    ·their relationship must be genuine and continuing; and

    ·they must live together or not live separately and apart on a permanent basis.

11. When considering whether s 5CB(2) is met, the Tribunal may consider any of the circumstances outlined in reg 1.09A of the Regulations. These circumstances are in reg 1.09A(3)(a)-(d) as follows and for each of them examples are given in the Regulations:

    ·The financial aspects of the relationship:  reg 1.09A(3)(a)

    ·The nature of the household:  reg 1.09A(3)(b)

    ·The social aspects of the relationship:  reg 1.09A(3)(c)

    ·The nature of the persons’ commitment to each other:  reg 1.09A(3)(d)

12. The Tribunal has reviewed information in both the Department and Tribunal files to address these matters relating to the claimed de facto relationship, which are effectively questions; they are questions the Tribunal must ask itself and answer.

13. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations. Relevantly in this case, a member of the family unit can be, among other things, a de facto partner.

14. The Tribunal has considered the matters which it must have regard to in reg 1.09(3) of the Regulations and, giving significant weight to the Declaration of Civil Union and it being accepted, before the union was registered in Brazil, that the parties had been in what appears to be a de facto relationship since February 2019, that they continue to be in a de facto relationship while they are residing in Australia, at the time of this decision.

15. The Tribunal is satisfied: that the parties are not married or related by family, that they have a mutual commitment to a shared life to the exclusion of all others; that their relationship is genuine and continuing; and that they live together or not live separately and apart on a permanent basis. 

16. On this basis the Tribunal is satisfied that the applicant is the de facto partner, and member of the family unit, of the primary visa holder for the purpose of meeting the GTE requirement in cl 500.312.

17. The Tribunal must now consider, and be satisfied, that the applicant is a genuine applicant for entry and stay as a member of Ms Fonseca’s family unit.  Relating to the GTE requirement that must be met by the applicant, the Tribunal has had regard to relevant matters in Ministerial Direction No. 103 (that has replaced Ministerial Direction No. 69 since the visa application was made).  The matters to which the Tribunal has had regard include the applicant’s circumstances, immigration history, compliance with and intention to comply with his visa conditions and any other relevant matter.

18. The Tribunal has carefully considered information before it that is relevant to the above matters and is satisfied that the applicant meets the cl 500.312 GTE criteria.

19. Departmental records confirm that Ms Fonseca applied for the subclass 500 student visa on 27 June 2023 and that the visa was granted to her on 10 January 2024, and that Ms Fonseca’ currently is the holder of the visa which ceases on 15 March 2026.

    Conclusion

20. For these reasons, the applicant meets cl 500.312 of Schedule 2 to the Regulations.

    DECISION

21. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a 500 (Student) visa:

    ·Sub-clause 500.312 of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    Senior Member

    1.12     Member of the family unit

    (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)A person is a member of the family unit of another person (the family head) if the person is:

    (a)     a spouse or de facto partner of the family head; or

    (b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

    (i)has not turned 18; or

    (ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c)      is a dependent child of a person who meets the conditions in (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    …

    1.05A  Dependent

    (1)  Subject to subregulation (2), a person (the first person) is dependent on another person if: 

    (a)  at the time when it is necessary to establish whether the first person is dependent on the other person: 

    (i)  the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person  for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)  the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)  the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    (2) …