Choi Ming Peng (Migration)

[2018] AATA 3250

Choi Ming Peng (Migration) [2018] AATA 3250 (10 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Choi Ming Peng Choi Ming Peng

CASE NUMBER:  1721779

HOME AFFAIRS REFERENCE(S):           BCC2017/2734355

MEMBER:Mark Bishop

DATE:10 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 10 July 2018 at 12:22pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Failure to include applicant as a member of family unit – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 397A
Migration Regulations 1994 (Cth), r 2.07A, 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 on 7 September 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 1 August 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.500.311of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the primary person failed to include the applicant as a member of his family unit when he applied for a Student visa on 27 July 2015.

4. In this matter the primary person is LOW, KIN KONG, the holder of a student visa and husband of the secondary person. The secondary person is CHOI, MING PENG, the applicant in this matter and the wife of the primary person.

5. On 14 June 2018 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 10 July 2018. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

6. No response to the hearing invitation was received. However the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(4) the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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 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 declared the secondary person as a member of his family unit at the time of application for his student visa.

9. The primary person lodged an application for a TU572 visa on 30 June 2015. The primary person declared “Never Married/De-facto” for Relationship Status. The primary person failed to declare the secondary person in his application. The primary person failed to provide the applicant’s name, date of birth, or citizenship and did not provide evidence of the de facto relationship with the applicant.

10. The applicant lodged a Subsequent Entrant Student Visa Application (Class TU 500) on 1 August 2017. In her application the applicant stated she was married to the primary person. The delegate recorded the applicant provided a NAATI translated copy of her overseas marriage certificate indicating that she and the primary person were married on 10 July 1991 (Df: 24).

11. The delegate made a finding that the primary person had never informed the Department of his marriage to the applicant. The delegate made a further finding that the primary person in his application for a Student visa on 30 June 2015 declared “Never Married/De-facto” for Relationship Status. The delegate noted the applicant had travelled to Australia on a number of occasions

12. As the primary person did not declare the applicant on his application for a student visa the applicant is not eligible for the grant of a subsequent visa as a dependant of a student visa holder.

13. The delegate ruled that as the information about the de facto relationship was not provided on the primary person’s application, the applicant did not meet regulation 500.311(a)(i).

14. The applicant has sought review of the decision before the Tribunal.

15. The issue in this case is whether the applicant meets the time of application criterion in 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); 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.

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

17. The Tribunal finds the applicant entered into a marriage relationship with the primary person on 10 July 1991 and therefore became a member of his family unit. The primary person applied for his student visa on 30 June 2015. At that time the primary person failed to declare his marriage relationship with the applicant.

18. In these circumstances r.2.07AF(3) is not satisfied as the primary persons’ student visa application did not include the name, date of birth, citizenship and relationship between the primary person and the applicant.

19. In these circumstances r.2.07AF(4) is not relevant as the applicant became a member of the family unit of the primary person before the time of application.

20. The Tribunal finds that as the applicant was not included in the primary person’s student visa application under r.2.07AF(3) or in information provided in relation to the application under r.2.07AF(4), then the applicant does not satisfy cl.500.311(a).

21. Accordingly the Tribunal finds that the applicant does not meet cl.500.311.

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