Aryal (Migration)

[2021] AATA 1030

Aryal (Migration) [2021] AATA 1030 (7 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sanjay Aryal

CASE NUMBER:  1927013

HOME AFFAIRS REFERENCE(S):          BCC2019/1326442

MEMBER:Mark Bishop

DATE:7 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 07 April 2021 at 10:48am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of family unit – secondary visa applicant/review applicant no longer in relationship with primary applicant – current divorce proceedings in home country – telephone hearing because of COVID-19 restrictions – request for adjournment until face-to-face hearing possible – practice direction – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 500.311

CASE
MIAC v Li (2013) 249 CLR 332

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 15 September 2019 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 15 March 2019. 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 primary person and review applicant were no longer in a relationship.

4. In this review application the primary person is Bishnu ACHARYA ARYAL. She is the holder of a student visa. In this case the secondary person and the review applicant are the same person Sanjay ARYAL.

5. The applicant appeared before the Tribunal on 7 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Abhisekh Bhandari (friend) and Mr Bijaya Aryal (brother).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 primary person and the secondary person are in a genuine and continuing relationship.

8. The issue in this case is whether the applicant meets cl.500.311 of Schedule 2 to the Migration 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);
   
   (b) the applicant became a member of the family unit of the primary person:
   
   after the grant of the student visa to the primary person;
   (ii) and before the application was made.

9. On 9 September 2019 the delegate found as follows:

   ·The applicant applied for a subsequent entrant dependent Student (Subclass 500) visa on 15 March 2019 on the basis that he was the member of the family unit of a person holding a student visa, Bishnu ACHARYA ARYAL.

   ·The primary person declared the review applicant as a dependent applicant when applying for her student visa on 15 March 2019.

   ·The Department received information that the primary person and review applicant were living apart and were separated.

   ·On 11 June 2019 the applicant was sent an email to withdraw. No response was provided.

   ·On 11 July 2019 the applicant was sent a s57 Natural Justice letter, inviting him to provide a response on the adverse information received. He was given 28 days to provide a comment.

   ·The delegate considered the response that was received on 7 August 2019 but found that the review applicant and primary person are no longer living together and that they have separated, and the relationship has ended. Therefore, the review applicant does not meet the requirements of regulation cl.500.311 as the applicant does not satisfy the definition of Spouse in Section 5F of the Act.

10. The applicant provided the following information to the Tribunal:

    ·Copy of Sanjay ARYAL’s Passport

    ·Relationship Certificate between Sanjay ARYAL and Bishnu ACHARYA ARYAL dated 28 November 2016.

    ·Request Checklist and Details for Immigration Health Examinations dated 18 May 2019.

    ·Visa Grant Notice (Subclass 485) for Sanjay ARYAL dated 16 March 2017.

    ·Acknowledgment of application received for a Temporary Graduate (Post-Study Work Subsequent Entrant) (subclass 485) for Bishnu ACHARYA ARYAL dated 10 May 2017.

    ·Submission from the applicant dated 21 September 2019 outlined the following:

    o   The main reason for his review is to be able to independently apply for his visa.

    o   The review applicant states his file was withdrawn by the primary person applicant due to family disputes.

    o   The review applicant was charged with medium level domestic convictions.

    o   On 17 or 18 March 2019 the review applicant stated he became aware of the primary persons extramarital relationship.

    o   The review applicant states he supported the primary person emotionally, financially and behaviourally. 

11. Timeline of visa applications:

    ·Relationship Certificate states the review applicant and primary person were in a relationship on 28 November 2016.

    ·The primary person Bishnu ACHARYA ARYAL applied for a student visa on 15 March 2019. The review applicant was listed as a de facto partner on the primary person’s application.

    ·The review applicant Jose Sanjay ARYAL applied for a subsequent entrant dependent Student (Subclass 500) visa on 15 March 2019.

    ·The primary person Bishnu ACHARYA ARYAL student visa application was approved on 11 July 2019.

12. The applicant advised the Department in writing on 7 August 2019 that his marriage relationship had broken down and he “…was compelled to leave my unit and my wife but I was paying our rent and other bills till 2 June 2019…”

13. The Tribunal examined the file and the Tribunal is satisfied that the finding of the delegate is correct.

    Request for Adjournment

14. On 24 March 2021 the review applicant wrote to the Tribunal and requested an adjournment until a face to face hearing could occur. He requested the adjournment on the following terms:

    ·‘I would like to justify that the phone conversation or say phone hearing is not the appropriate means of communication for something as a matter of visa. We can’t express the true feelings and the points that I want to lay forward. I understand there is Covid situation but put review not to go through the decision making process on the basis of phone hearing as there are valid points that I want to put forward which can only be shown in express-able way and through human interaction.

    • As a human rights, I believe I should be able to express my points and case in a manner appropriate for both parties. Therefore, I kindly request AAT to grant me postponement of hearing in a manner of face to face hearing when available.’

15. On 2 August 2018 the President of the Administrative Appeals Tribunal brought down a Practice Direction relating to the conduct of reviews under Migration and Refugee Division. Clause 7 of the Practice Direction dealing with Migration and Refugee Matters provides as follows:

    Seeking an adjournment
    7.3 If you seek an adjournment of a scheduled hearing, you must contact us
    immediately and state the reasons why the date is unsuitable.

    17.4    …

16. The High Court of Australia in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner, which is reasonable and has regard to the statutory purposes of s360. In considering reasonableness, the Court considered the Tribunal’s statutory purpose to conduct a conduct its review in a manner which ‘is fair, just, economical, informal and quick’.

17. The Tribunal considered the request outlined above in paragraph 14. The Tribunal was confident the applicant would be able to articulate his arguments and lead evidence to outline his case during the review haring. The Tribunal uses a secure line for audio hearings. These have become quite common during the period of Covid. In particular the Tribunal was aware of the importance of the review application and allowing the applicant the full opportunity to outline his concerns. The Tribunal determined an audio hearing was a suitable forum and refused the application for an adjournment.

18. The applicant gave evidence to the Tribunal that he came to Australia in 2014, completed a Master degree in Accounting in 2016, got married in Nepal in November 2016, returned to Australia with his wife, he stopped studying in 2016 and had not been engaged in any study since that time, the marriage experience difficulties, the couple separated in April 2019, the couple had not re-united since that time and had live separately and were currently going through divorce proceedings in the court system in Nepal.

19. The evidence of the two witnesses confirmed the recitation summarised in paragraph 18 above. In particular both witnesses advise the Tribunal they were aware the applicant and his former wife had separated and were going through divorce proceedings in Nepal. In addition both witnesses attested to the overall good character of the applicant.

20. The Tribunal finds that applicant separated from the primary person in April 2019 and the two persons are currently going through divorce proceedings in Nepal. The Tribunal finds that the applicant is not a member of the family unit of the primary person and has not been a member of her family unit from April 2019.

21. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.311 of Schedule 2 to the Regulations.

22. 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

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

    Mark Bishop
    Member