Chiu (Migration)

[2020] AATA 3465

Chiu (Migration) [2020] AATA 3465 (2 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chi Ho Chiu

CASE NUMBER:  1725592

HOME AFFAIRS REFERENCE(S):          BCC2017/1701823

MEMBER:Jennifer Cripps Watts

DATE:2 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 2 July 2020 at 2:00pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not a member of family unit – primary applicant does not have a student visa – no need to consider relationship to primary applicant – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994, 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 and Border Protection (the delegate) on 3 October 2017 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 May 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 as a secondary applicant on the basis of claiming to be a member of family unit, of a person who satisfies the primary criteria:  s.500.311.

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 delegate was not satisfied the applicant was a member of the family unit of a person who met the primary criteria, relevantly a person who holds a student visa.

4. On 20 October 2017 the applicant lodged a review application and provided the Tribunal with a copy of the delegate’s decision.

5. The applicant appeared before the Tribunal by phone on 2 July 2020 to give evidence and present arguments. The applicant indicated he had witnesses available to give evidence by phone.  However, later in the hearing he informed the Tribunal it would not be necessary to call them.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

6. It was explained to the applicant at the beginning of the hearing that the hearing was being conducted by phone primarily because of the COVID-19 situation.  He was told that at any time he could ask for questions to be repeated or explained.  There was occasional clarification, which is not unusual in the Migration Division where hearings are conducted with the assistance of interpreters.  However the Tribunal is satisfied that all who were present at the scheduled hearing could be clearly heard and understood.

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

   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 applicant in this case applied for the Subclass 500 student visa on 12 May 2017, as a secondary applicant, on the basis of his claim to be in a de facto relationship with the primary applicant, Pui Ki Cheung.

9. A primary applicant must satisfy all primary criteria at the time of decision. A secondary applicant need only meet the secondary criteria. The visa was refused because the applicant did not meet cl.500.311 of Schedule 2 to the Regulations. Relevantly, in this case, to meet cl.500.311 the applicant must be a member of the family unit of a person who holds a student visa. This the issue on the review and the same determinative issue on which the visa was refused.

10. At the hearing, the Tribunal acknowledged that the applicant had provided documentary evidence in support of the claim to be in a genuine de facto relationship with Ms Cheung.

11. It was explained to the applicant that to meet cl.500.311 he must be a member of the family unit of someone who holds a student visa. The applicant confirmed that his application was made on the basis that he is a member of the family unit of Ms Cheung and that he still claims to be a member of her family unit, her de facto partner. The applicant was asked if Ms Cheung still holds a student visa and he responded, and that he was sure, that she no longer holds a student visa. He added that in 2019 Ms Cheung and made a combined visa application for an employer nomination on the basis of Ms Cheung working for the Dumpling Studio in Cairns and that they are currently awaiting an outcome from the Department.

12. At the hearing, the applicant was told that, on the basis of his claim to be in a de facto relationship with Ms Cheung if she does not hold a student visa then he cannot be granted a student visa.  This was discussed with the applicant and he informed the Tribunal that he understood he could not be granted the student visa and that he understood why, that is, because Ms Cheung no longer holds a student visa.   The applicant said his migration agent had provided him with advice prior to the Tribunal hearing that he cannot be granted a student visa.  The applicant said he wanted to attend the Tribunal hearing anyway, even though he was aware there would not be a positive outcome, because he wanted to ensure the Tribunal was aware he had ‘followed the correct procedure’.  The applicant said he had considered withdrawing the review application but decided not to because he was concerned it may affect his current visa.

13. The Tribunal is satisfied, on the evidence of the applicant, that Ms Cheung does not hold a Subclass 500 student visa.  On this basis it is not necessary, because it is not material to the issue on the review, to consider whether he and Ms Cheung are in a genuine de facto relationship.

14. For the reasons given, 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.

    Jennifer Cripps Watts
    Member

    
    

    ATTACHMENT A - Migration Regulations 1994, Schedule 2

    500.2 Primary criteria

    Note:    The primary criteria must be satisfied by at least one member of the family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

    All criteria must be satisfied at the time a decision is made on the application.

    ……………

    500.3 Secondary criteria

    Note:    Requirements to be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.

    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.

    ATTACHED 2 – Migration Regulations 1994, Schedule 2

    Reg 2.03A Criteria applicable to de facto partners

    (1)  In addition to the criteria prescribed by regulations 2.03 and 2.03AA, if a person claims to be in a de facto relationship for the purposes of a visa application, the criteria in subregulations (2) and (3) are prescribed.

    (2)  If  a person mentioned in subregulation (1) applies for a visa:

    (a)  the applicant is at least 18; and

    (b)  the person with whom the applicant claims to be in a de facto relationship is at least 18. 

    (3)  Subject to subregulations (4) and (5), if: 

    (a)  a person mentioned in subregulation (1) applies for:

    (i)  a permanent visa; or 

    (ii)  a Business Skills (Provisional) (Class UR) visa; or 

    (iia)    a Business Skills (Provisional) (Class EB) visa; or

    (iii)  a Student (Temporary) (Class TU) visa; or

    (iv)  a Partner (Provisional) (Class UF) visa; or

    (v)  a Partner (Temporary) (Class UK) visa; or

    (vi)  a General Skilled Migration visa; and 

    (b)  the applicant cannot establish compelling and compassionate circumstances for the grant of the visa;

    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.  

    (4)  Subregulation (3) does not apply if the applicant applies on the basis of being: 

    (a)  in a de facto relationship with a person who:

    (i)  is, or was, the holder of a permanent humanitarian visa; and

    (ii)  before the permanent humanitarian visa was granted, was in a de facto relationship with the applicant and informed Immigration of the existence of the relationship; or 

    (b)  in a de facto relationship with a person who is an applicant for a permanent humanitarian visa. 

    (5)  Subregulation (3) does not apply if the de facto relationship is a relationship that is registered under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those Regulations.