Dhali (Migration)

Dhali (Migration) [2019] AATA 1433 (17 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dell Reyal Dhali
CASE NUMBER:  1612511
DIBP REFERENCE(S):  BCC2015/3587662
MEMBER:Michael Ison
DATE:17 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 17 January 2019 at 11:33am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – member of family unit of primary visa holder – student visa holder did not declare spouse relationship before grant of application – meaning of defacto – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994, r 1.03, 1.09, 1.12, 2.03, 2.07, Schedule 1, Paragraph 1222, Schedule 2, cl 573.314

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 July 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under s.65 of the Migration Act 1958 (the Act).
The applicant is Mr Dell Reyal Dhali, a 28 year old Bangladeshi national. Mr Dhali provided the Tribunal with a copy of the delegate’s decision with his application for review.
Mr Dhali applied for the visa on 27 November 2015. The delegate refused to grant the visa because the delegate found that Mr Dhali did not satisfy the requirements of cl.573.314 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found:
You lodged a dependent Student visa application on 27 November 2015… . In this application, you provided evidence that you and the primary Student visa holder Ms Trisha Munshi were in a De (sic) facto relationship from 21 April 2014. Ms Munshi previous (sic) Student visa application was lodged on 17 April 2014 and granted on 13 May 2014. She did not declare a spouse relationship to you prior to grant (sic) of her application on 13 May 2014.
As you were a member of the family unit at time (sic) of this application and were not declared (as required by Regulation 2.07AF with your name, date of birth, citizenship and the relation between yourself and the primary applicant), then you fail to satisfy clause 573.314.[1]
[1] Tribunal file, folio 2 (back).
Mr Dhali appeared before the Tribunal on 2 March 2018 to give evidence and present arguments.
Mr Dhali had a lawyer and migration agent acting for him at the time of his application for a dependent Student visa. The lawyer and migration agent was not acting for Mr Dhali by the time of the Tribunal’s hearing.
The Tribunal invited Mr Dhali to a second hearing to be conducted on 30 November 2018. Mr Dhali did not attend the Tribunal at the designated time or place and did not contact the Tribunal to arrange a video or telephone conference based hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue before the delegate and at the time of the Tribunal’s hearing was whether Mr Dhali meets the time of decision criterion in cl.573.314 which relevantly states:
(1)If the applicant claims to be 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, the applicant meets subclause (2) or (3).
(2)The applicant meets this subclause if:
(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
(b)   the applicant was included in the primary person’s application under subregulation 2.07AF(3) or in information provided in relation to the primary person’s application under subregulation 2.07AF(4).
(3)The applicant meets this subclause if the applicant became a member of the family unit of the primary person:
(a)after the grant of the student visa to the primary person; and
(b)    before the application was made.
Regulation 2.07AF states:
Certain applications for Student (Temporary) (Class TU) visas
(1)Despite anything in regulation 2.07, an application for a student visa that, under, may be made on form 157E may be made on behalf of an applicant.
(2)An application that is made on form 157E is taken to have been made outside Australia.
(3)An application made on form 157A, 157A (Internet), 157E or 157G by a person who seeks to satisfy the primary criteria (the primary applicant) must include:
(a) the name, date of birth and citizenship of each person who is a member of the family unit of the applicant at the time of the application; and
(b) the relationship between the person and the applicant.
(4)If a person becomes a member of the family unit of the primary applicant after the time of application and before the time of decision, the primary applicant must inform the Minister, in writing, of:
(a) the name, date of birth and citizenship of the person; and
(b) the relationship between the person and the primary applicant.
(5) Subregulations (3) and (4) apply:
(a) whether or not the member of the family unit is an applicant for a Student (Temporary) (Class TU) visa; and
(b) if the member of the family unit is not an applicant for a Student (Temporary) (Class TU) visa — whether or not the member of the family unit intends to become an applicant for a Student (Temporary) (Class TU) visa.
Note member of the family unit of an applicant for a Student (Temporary) (Class TU) visa is defined in subregulation 1.12(2).
(6)An application made under paragraph 1222(3)(aa) of Schedule 1 is taken to have been made outside Australia.
At the hearing Mr Dhali told the Tribunal he agreed with the dates in the delegate’s decision letter but that he and Ms Munshi were not aware of the requirements of Australian migration law and did not think they had to list Mr Dhali as a member of the family unit of Ms Dhali because they had not lived together for 12 months at that time.
Mr Dhali’s evidence was that he and Ms Munshi grew up together in Bangladesh, their families were in Bangladesh until Ms Munshi’s family moved to Canada when she was 13 to 14 years old and Mr Dhali’s family moved to Kuwait when he was 14 to 15 years old. Mr Dhali says he maintained contact with Ms Munshi when their families moved and in 2010 they holidayed together in Bangladesh. It is at this time that Mr Dhali’s evidence is that his friendship with Ms Munshi changed to a relationship. Thereafter his evidence was that he and Ms Munshi stayed in daily contact.
Mr Dhali came to Australia to study in January 2012 and Ms Munshi eventually joined him and they commenced living together from 7 March 2014. Mr Dhali’s evidence is that he was in de facto relationship and was a member of the family unit of Ms Munshi from as early as 2010-11 when they lived in separate countries.
Ms Munshi came to Melbourne to study and signed a 12 month lease with Mr Dhali for a unit on 25 February 2014, with a commencement date of 7 March 2014. Mr Dhali provided a certified copy of this lease to the Department with his application for the Student visa. Mr Dhali’s application also included a certified copy of another lease he and Ms Munshi signed for lease of the same premises for the next 12 months (2015-16) and certified copies of joint utility accounts, including a telephone line account dated 21 April 2014 and correspondence with various utilities showing connection of electricity, water and telephony and internet services to their rented premises.[2]
[2] Application for a dependent Student visa with attachments and representative’s cover letter dated 26 November 2015, Department file, folios 1 to 66.
Mr Dhali’s application to the Department was made on a form 157A[3] and also included a copy of a receipt from the Victorian Department of Justice (as it was then) dated 26 November 2015 for the registration of his relationship with Ms Munshi as a domestic relationship in Victoria.[4]
[3] Department file, folios 1 to 22.
[4] Department file, folio 37.
Mr Dhali told the Tribunal he and Ms Munshi still live in the same premises. Mr Dhali’s evidence of co-habitation and joint responsibility for their household is consistent with the documents Mr Dhali provided with his application for the Student visa to the Department.
Mr Dhali’s evidence to the Tribunal was that the registration of their relationship in Victoria took one month but that his former representative has the certificate of registration.
The Tribunal accepts Mr Dhali’s evidence noted above.
In the cover letter to the Department for Mr Dhali’s application for the subsequent entrant Student visa, Mr Dhali’s representative at the time submitted:
Note that the couple instruct that they did not move in to the premises together until about March or April 2014 (consistent with connection of utilities evidence above) and in any event did not enter a defacto relationship (as relevantly defined) until after the grant of Ms MUNSHI’s visa. There is no suggestion, therefore, that Ms MUNSHI did not comply with the requirement to advise the department of the existence of the relationship prior to the application or grant of her visa.[5]
[5] Department file, folio 32.
There was no other information in the letter to support the assertion that Mr Dhali’s de facto relationship with Ms Munshi commenced after the grant of Ms Munshi’s Student visa.
Section 5(1) of the Act provides that the term ‘member of the family unit’ of a person has the meaning given by the regulations made for the purposes of this definition.
Regulation 1.03 provides that member of the family unit has the meaning set out in regulation 1.12 of the Regulations. Regulation 1.12(2A) of the Regulations provides:
A person is a member of the family unit of an applicant for, or holder of, a Student (Temporary) (Class TU) visa if the person is:
(a) a spouse or de facto partner of the applicant or holder; or
(b) a dependent child of the applicant or holder, or of that spouse or de facto partner of the applicant or holder, who is unmarried and has not turned 18.
Section 5(1) of the Act provides the term de facto partner has the meaning given by s.5CB of the Act. Section 5CB of the Act defines the term as follows:
De facto partners
(1)For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2)For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a)      they have a mutual commitment to a shared life to the exclusion of all others; and
(b)      the relationship between them is genuine and continuing; and
(c)      they:
(i)  live together; or
(ii)  do not live separately and apart on a permanent basis; and
(d)      they are not related by family (see subsection (4)).
(3)  The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Regulation 1.09A makes provision for the matters set out in s.5CB(3) and states:
(1)For subsection 5CB(3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB(2)(a), (b), (c) and (d) of the Act exist.
Note 1:   See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2:   The effect of subsection 5CB(1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB(2) sets out conditions about whether a de facto relationship exists, and subsection 5CB(3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exists.
(2)If the Minister is considering an application for:
(a)      a Partner (Migrant) (Class BC) visa; or
(b)      a Partner (Provisional) (Class UF) visa; or
(c)      a Partner (Residence) (Class BS) visa; or
(d)      a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)     the financial aspects of the relationship, including:
(i)      any joint ownership of real estate or other major assets; and
(ii)     any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day-to-day household expenses; and
(b)     the nature of the household, including:
(i)      any joint responsibility for the care and support of children; and
(ii)     the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)     the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being in a de facto relationship with each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d)     the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii)  the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long-term one.
(4)     If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
The prescribed criteria for a de facto relationship are set out in r.2.03A, which states:
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:
… (iii)  a Student (Temporary) (Class TU) 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.
There is no requirement for de facto partners to live together for 12 months before they become a de facto couple under the migration law. The Minister must be satisfied an applicant for a Student visa has been in a de facto relationship for at least the 12 months immediately preceding their application for the Student visa. However, this requirement does not apply if the couple has registered their relationship in a State or Territory.
The Tribunal accepts Mr Dhali’s oral and written evidence that his relationship with Ms Munshi was registered as a domestic relationship in Victoria from in or about December 2015. This means r.2.03A(3) does not apply.
The Tribunal may, but is not required to consider, the circumstances set out in r.1.09A(3) as Mr Dhali is applying for a Student visa not one of the visas mentioned in r.1.09A(2). The Tribunal has considered these circumstances.
On the basis of Mr Dhali’s evidence the Tribunal finds that Mr Dhali and Ms Munshi became a de facto couple and therefore Mr Dhali became a member of Ms Munshi’s family unit for the purposes of the migration law at the earliest in 2010 when they commenced a committed relationship to the exclusion of all others and at the very latest in March 2014 when they began to live together, there was a pooling of financial resources and they shared joint responsibility for their household.
At that time the Tribunal finds that Mr Dhali and Ms Munshi had a mutual commitment to a shared life to the exclusion of all others, the relationship between them was genuine and continuing and whilst they initially lived apart, they did not intend to do so on a permanent basis and now live together and have done so since March 2014. There is no evidence before the Tribunal that Mr Dhali and Ms Munshi are related by family.
On this basis, the Tribunal finds that Mr Dhali was a member of Ms Munshi’s family unit at the time Ms Munshi applied for the primary Student visa on 17 April 2014 and by the time that visa was granted on 13 May 2014. The Tribunal finds Ms Munshi was required to include Mr Dhali as a member of her family unit in her application for a Student visa or subsequently by informing the Minister before the grant of her Student visa. The evidence before the Tribunal is that Ms Munshi did not do this.
These findings mean that Mr Dhali does not meet the requirements of cl.573.314 as he was a member of the family unit of the primary visa holder both at the time of her application for the Student visa and when the Student visa was granted to her but the Minister was not informed, in accordance with the requirements of r.2.07AF(3), of Mr Dhali’s details and his relationship with Ms Munshi as the primary applicant.
Accordingly, the Tribunal finds that Mr Dhali does not meet the requirements of cl.573.314 of Schedule 2 to the Regulations.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Michael Ison
Senior Member

[2019] AATA 1433

17 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice