Cabral de Lima (Migration)

[2021] AATA 1245

Cabral de Lima (Migration) [2021] AATA 1245 (27 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Flavia Cabral de Lima

CASE NUMBER:  2002530

HOME AFFAIRS REFERENCE(S):          BCC2019/5736927

MEMBER:Mark Bishop

DATE:27 April 2021

PLACE OF DECISION:  Melbourne

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 Subclass 500 (Student) visa:

·cl.500.311 of Schedule 2 to the Regulations.

.

Statement made on 27 April 2021 at 12:11pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of family unit – in de facto relationship for less than 12 months at time of first visa application, but for more than 12 months at time of application for subsequent visa – no evidence of shared address provided to department – relationship certificate and financial documents provided to tribunal – decision on papers – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03A, Schedule 2, cl 500.311(a)(i)

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 23 January 2020 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 13 November 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 failed to prove they had been in a de facto relationship with the review applicant for at least 12 months when he applied for a student visa on 7 August 2018.. This factual situation was different at time of decision as a subsequent student visa was granted to the primary person on 12 October 2020.

4. In this review application the primary person is Gustavo BARBOSA. He is the holder of a student visa. In this case the secondary person and the review applicant are the same person, Miss Flavia CABRAL DE LIMA. 

5. The Tribunal resolved the review application on the papers.

6. The applicant was assisted in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 had been in a de facto relationship for at least 12 months at the time of application for his student visa.

9. 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.

10. As set out in the decision record in assessing whether a person is a member of the family unit  as a de facto partner Regulation 2.03A states as follows:

    ·“the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application."

11. On 23 January 2020 the delegate found as follows:

    ·The applicant applied for a subsequent entrant dependent student visa (Subclass 500) visa on 13 November 2019 on the basis that she was the member of the family unit of a person holding a student visa, Gustavo BARBOSA.

    ·The delegate stated the primary person and the review applicant had not provided any evidence of a shared address prior to the 12 months before the application was lodged. No evidence was provided of the 12 months or shared finances or expenses.

    ·The delegate found that the primary person and review applicant although were in a genuine and continuing relationship could not prove they had been in a de facto relationship for a period of at least 12 months from the time of the primary person’s visa lodgement. The delegate made a finding that the secondary person (review applicant) did not meet Regulation 2.03A and therefore does not meet the criteria set out in cl.500.311 of the Regulations.

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

    ·Relationship Certificate in the names of Gustavo BARBOSA and Flavia CABRAL DE LIMA registered on 14 November 2019.

    ·Share House Licence Agreements in the names of Gustavo BARBOSA and Flavia CABRAL DE LIMA dated 30 November 2019, 16 February 2020 and 17 August 2020.

    ·Joint Bank Statement in the names of Gustavo BARBOSA and Flavia CABRAL DE LIMA dated 18 April 2021.

    ·Personal Statement from Flavia CABRAL DE LIMA stating:

    oThey were advised to officiate their relationship as de facto but did not search further regulation or requirements as they put trust into the professional advice.

13. Timeline of visa applications

    ·The primary person Gustavo BARBOSA applied for a student visa on 17 January 2018.

    ·The primary person Gustavo BARBOSA student visa application was approved on 1 February 2018.

    ·The primary person Gustavo BARBOSA applied for a student visa on 7 August 2018.

    ·The primary person Gustavo BARBOSA student visa ceased on 11 September 2018.

    ·The primary person Gustavo BARBOSA student visa application was approved on 11 September 2018.

    ·The review applicant Flavia CABRAL DE LIMA applied for a student (Subsequent entrant) visa on 13 November 2019.

    ·The primary person Gustavo BARBOSA applied for a student visa on 6 June 2020.

    ·The primary person Gustavo BARBOSA student visa ceased on 16 June 2020.

    ·The primary person Gustavo BARBOSA bridging visa was granted on 9 June 2020.

    ·The primary person Gustavo BARBOSA bridging visa ceased on 12 October 2020.

    ·The primary person Gustavo BARBOSA student visa application was approved on 12 October 2020.

14. The Tribunal examined the file and the Tribunal is satisfied that the finding of the delegate is correct. However the facts are now different as the primary person applied for and was granted a new student visa with effect from 12 October 2020.

15. The Tribunal is required to make a time of decision finding. This review application is not a time of application matter. In this review application the primary person’s application for a student visa was granted on 12 October 2020. This means the period of time outlined in paragraph 10 above runs from 12 October 2019.

16. The Tribunal has reviewed all the material on both the Departmental and Tribunal files.

17. The Tribunal is satisfied the applicant and primary person were in a de facto relationship from at least early 2019 and this date satisfies the requirements summarised in r.2.03A as set out in paragraph 10 above.

18. The Tribunal finds that the applicant has satisfied the requirements of cl.500.311(a)(i) as set out in paragraph 9 above.

19. Accordingly, the Tribunal is satisfied that the applicant meets cl.500.311 of the Regulations.

20. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    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 Subclass 500 (Student) visa:

    ·cl.500.311 of Schedule 2 to the Regulations.

    Mark Bishop
    Member