Do (Migration)

Do (Migration) [2018] AATA 4757 (17 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dang Khoa Do
CASE NUMBER:  1703160
Home Affairs REFERENCE(S):                BCC2016/3189406
MEMBER:Michael Ison
DATE:17 October 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 17 October 2018 at 12:37pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – subsequent entrant Student visa – member of the same family unit – de facto relationship – Department not informed of relationship – student visa application – no proof of course enrolment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A, 2.07AF Schedule 2 cls 500.211 , 500.311
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 and Border Protection on 6 February 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is Mr Dang Khoa Do, 29 year old Vietnamese national.
Mr Do applied for the visa on 26 September 2016. 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.
The delegate in this case refused to grant the visa on the basis that Mr Do did not satisfy the requirements of cl.500.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found Mr Do was a member of the family unit of the primary visa holder, Ms Pham, before the grant of Ms Pham’s student visa and the Minister was not informed that Mr Do had become a member of the family unit of Ms Pham prior to Ms Pham’s Student visa being granted.
Mr Do provided a copy of the delegate’s decision dated 6 February 2017 to the Tribunal with his application for review of the delegate’s decision.
The hearing
Mr Do appeared before the Tribunal on 11 April 2018 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
Mr Do was assisted in relation to the review by his registered migration agent, Mr Tran from TransNet Business Consulting Group.
The Tribunal had a copy of the Department’s file and the Tribunal’s file for this application. The Department’s file included Mr Do’s application for the visa and all the documents submitted with that application.
At the commencement of the hearing the Tribunal explained to Mr Do:
·The Tribunal was conducting a merits review of the decision of a delegate of the Minister not to grant him a visa under cl.500.311 of Schedule 2 to the Regulations;
·The Tribunal is independent of the Department and is not bound by the decision of the delegate;
·The requirements to be granted a visa under cl. 500.311, with the major issues on review being when Mr Do became a member of the family unit of Ms Pham as the primary visa holder and when the Minister was informed of this; and
·That Mr Do could tell the Tribunal about any matters Mr Do believes are relevant to or support his application before the Tribunal.
Mr Do was specifically invited by the Tribunal toward the end of the hearing to inform the Tribunal of any matter not covered in the hearing that Mr Do felt was relevant to his application for review. Mr Tran was given a similar opportunity to make submissions on Mr Do’s behalf. Both Mr Do and Mr Tran accepted the Tribunal’s invitation and made final submissions.
Mr Do also told the Tribunal that he had read the decision of the delegate and then summarised that decision to the Tribunal in a manner that demonstrated he understood the decision. The Tribunal confirmed to Mr Do the findings of the delegate from the decision letter.
Written submissions on behalf of the applicant
On 29 March 2018, prior to the hearing, the Tribunal received an email from Mr Tran on behalf of Mr Do with the following documents attached:
·A three page letter from Mr Tran for Mr Do to the Tribunal; and
·Two page offer of enrolment in a General English course for Mr Do.
The 29 March 2018 letter included the following submission:
In the event that the Tribunal cannot make a favourable decision regarding the above [subsequent entrant visa application], we appeal to the Tribunal to allow the review applicant to provide evidence to show that he meet (sic) the primary criteria for a Student (class TU) visa. We have attached a Letter of offer from an education provider as an initial evidence (sic) toward the review applicant meeting the primary criteria. If the Tribunal confirms that this is allowable, further evidence will be provided.
On 9 April 2018, again prior to the hearing, the Tribunal received an email from Mr Tran on behalf of Mr Do with a copy of Ms Pham’s Overseas Student Health Cover policy statement of two pages attached.
On 19 June 2018, after the hearing, the Tribunal sent Mr Do a letter in accordance with s.359A of the Act. The letter enclosed a copy of Mr Do’s Provider Registration and International Student Management System (PRISMS) record dated 14 June 2018. The letter explained that Mr Do’s PRISMS record reports on his course enrolments, variations and completions and indicated at the time that Mr Do was not enrolled to study. The Tribunal’s letter noted Mr Tran’s request that Mr Do be considered against the primary criteria for the grant of Student visa in his own right and that one of the primary criteria for a Student (Class TU)(Subclass 500) visa is cl.500.211(a) which requires the applicant to be enrolled to study, rather than having a mere offer of enrolment. The Tribunal’s letter noted Mr Do’s PRISMS record was relevant to this aspect of the review because it indicated he was not enrolled to study and that being enrolled to study was a time of decision, not a time of application, criteria. The letter confirmed the consequence for Mr Do if the Tribunal relied on his PRISMS record when assessing him against the primary criteria for the grant of a Student visa would be that the information would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate not to grant Mr Do a Student visa in his own right.
Mr Tran, for Mr Do, obtained an extension of time to respond to the Tribunal’s letter so that a response was due by 19 July 2018. The Tribunal has not received a response from Mr Do or on behalf of Mr Do to the Tribunal’s letter dated 19 June 2018.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 first issue in the present case is whether Mr Do meets the requirements of cl.500.311 of Schedule 2 to the Regulations.
Clause 500.311 states:
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.
Subregulation 2.07AF of the Regulations states:
Certain applications for Student (Temporary) (Class TU) visas
(1) This regulation applies in respect of an application for a Student (Temporary) (Class TU) visa.
(2) Despite anything in regulation 2.07, an application may be made on behalf of an applicant.
(3) An application 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(6).
Subregulation 1.12(6) of the Regulations states:
(6)A person is a member of the family unit of an applicant for, or of a 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.
De facto partner is defined in section 5 of the Act as having the meaning given by section 5CB.
Section 5CB states:
(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 partner.
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:
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.
The effect of these provisions is as follows:
·If the de facto relationship is formed before the primary visa holder applied for their Student visa then the primary visa holder must have informed the Minister that the subsequent applicant was a member of their family unit at the time of the primary visa holder’s application for the primary visa.
·If the de facto relationship is formed after the primary visa holder applied for their Student visa then the primary visa holder must have informed the Minister that the subsequent applicant was a member of their family unit before the primary visa holder was granted their Student visa.
·If the de facto relationship is formed after the primary visa holder’s visa was granted, but before the subsequent applicant made an application as a member of the primary visa holder’s family unit for a subsequent entrant Student visa, then the subsequent applicant is eligible for the grant of such a Student visa.
·If the primary visa holder has informed the Minister that the subsequent applicant was a member of their family unit in a timely manner then they must also show one of the following:
ocompelling or compassionate circumstances justifying the grant of the subsequent entrant visa; or
othey have been in a de facto relationship for 12 months prior to the primary visa holder applying for their Student visa; or
othey have registered their relationship (which they may do at any time prior to the Tribunal’s hearing); or
othe primary visa holder holds a permanent humanitarian visa and informed Immigration of their de facto relationship before that visa was granted.
The Tribunal has no discretion in the initial assessments set out in the first two dot points above. They are time of application criteria rather than time of decision criteria. This means if the Minister was not informed that the subsequent entrant was a member of the family unit of the primary visa holder at the relevant time, the subsequent entrant cannot meet that criteria for the grant of a Student visa.
Background
Ms Pham applied for her Student visa, the primary visa in Mr Do’s subsequent entrant application on 26 July 2016 and was granted that visa on 21 September 2016.
In evidence to the Tribunal and in written submissions Mr Do told the Tribunal that he:
·Was in a boyfriend and girlfriend relationship with Ms Pham on 26 July 2016 and that they intended to register their relationship;
·Views a boyfriend and girlfriend relationship as husband and wife;
·Maintained a joint bank account with Ms Pham from 25 July 2016;
·Commenced living with Ms Pham from 23 August 2016 in a house shared with others;
·Asked Ms Pham to marry him on 23 August 2016;
·Registered his relationship with Ms Pham under the Victorian Relationships Act 2008 on 12 September 2016, but was waiting on notification of registration at the time Mr Do applied for the subsequent entrant visa on 26 September 2016;
·Registered their relationship to show their respective parents the genuineness of their relationship on official Government documentation;
·Received the relationship certificate which was issued on 9 November 2016;
·Was covered by Ms Pham’s overseas student health cover policy of insurance from 26 September 2016;
·Plans to marry Ms Pham in Vietnam in June 2018.

Ms Pham was not available to give evidence to the Tribunal.
Mr Tran submitted on behalf of Mr Do that at the time Ms Pham’s Student visa was granted on 21 September 2016 that Mr Do was not a member of Ms Pham’s family unit because their relationship was not registered at that time and merely applying for registration is not sufficient under Departmental policy to constitute a de facto relationship, as that term is defined in the migration legislation.
Mr Tran invited the Tribunal to find that Mr Do became a member of the family unit after Ms Pham was granted the primary visa on 21 September 2016 but before Mr Do applied for his subsequent entrant visa on 26 September 2016.
The Tribunal discussed this with Mr Do and asked on what basis he says that he and Ms Pham became a de facto couple between 21 and 26 September 2016. In those discussions Mr Do told the Tribunal he and Ms Pham fell in love and began an intimate relationship in April 2016 and committed to each other to the exclusion of all others from that point of time.
Following this evidence Mr Tran submitted that because Ms Pham’s and Mr Do’s parents wanted some official recognition of Ms Pham’s and Mr Do’s relationship they could not prove they are officially a couple until they received confirmation of the registration of their relationship. Therefore, according to Mr Tran, in Ms Pham’s and Mr Do’s minds they were not officially a de facto couple until they received confirmation of the registration of their relationship in November 2016.
Mr Tran further submitted to the Tribunal that there was no evidence of compelling or compassionate circumstances under r.2.03A(3)(b) or of Mr Do having been in a de facto relationship for 12 months before the date of his application on 26 September 2016. The Tribunal accepts these submissions that relate to time of application criteria for the visa.
However, the Tribunal finds that Mr Do and Ms Pham’s de facto relationship was registered before the delegate made their decision on 6 February 2017. Regulation 2.03A(5), which is a time of decision criteria, provides that where a de facto relationship is registered under relevant legislation the criteria in r.2.03A(3) do not apply. The Tribunal finds that Mr Do and Ms Pham’s de facto relationship was registered under such legislation on 9 November 2016, with Mr Do providing the Tribunal with a registration certificate to confirm this.
According to Mr Tran this leaves it open to the Tribunal to find that Mr Do became a member of Ms Pham’s family unit because their de facto relationship formed between 21 September 2016 and 26 September 2016 because the migration legislation is silent as to when the applicant became a member of the family unit of the primary visa holder. In support of this proposition, Mr Tran pointed out that Departmental policy for r.2.03A(5) states that the regulation is silent on when the relationship must be registered such that an applicant who registers their de facto relationship after their application is made but before it is decided meets the requirements of the regulation.
The Tribunal does not accept these submissions.
The Tribunal may, but is not required to consider, the circumstances set out in r.1.09A(3) as Mr Do is applying for a Student visa not one of the visas mentioned in r.1.09A(2).
The Tribunal prefers Mr Do’s evidence that he and Ms Pham had had a mutual commitment to a shared life to the exclusion of all others from as early as April 2016 and lived together from August 2016 in a relationship that is genuine and continuing.
This is consistent with the circumstances set out in r.1.09A(3) as Mr Do provided evidence of his and Ms Pham’s pooled financial resources through their joint bank account from July 2016 and joint health insurance from September 2016, shared living and social arrangements from August 2016 and the nature of their commitment being reflected in Mr Do’s August 2016 request to marry Ms Pham and the subsequent application to register their de facto relationship on 12 September 2016.
The Tribunal does not accept that Ms Pham’s and Mr Do’s relationship only became a de facto relationship between 21 and 26 September 2016. There was no compelling evidence before the Tribunal to support this proposition.
The Tribunal finds that for the purposes of the migration legislation that in all the circumstances Mr Do and Ms Pham were in a de facto relationship from at the latest 23 August 2016 when they began living together.
This means at the time of his application for a subsequent entrant Student visa on 26 September 2016 Mr Do was already a member of Ms Pham’s family unit. As Mr Do was not included in Ms Pham’s application for a Student visa under cl.500.311(a)(i) Ms Pham was obliged to inform the Department that Mr Do had become a member of her family unit under cl.500.311(a)(ii) and r.2.07AF(4).
Regulation 2.07AF(4) provides that if an applicant for a subsequent entrant Student visa becomes a member of the family unit of the primary Student visa applicant or holder, then the primary applicant must inform the Minister of the name, date of birth and citizenship of that person and their relationship to the primary applicant. There is no evidence or information before the Tribunal to suggest that Ms Pham did this in relation to Mr Do before the delegate made their decision.
The evidence before the Tribunal is that Mr Do also does not meet the requirements of cl.500.311(b), which applies where a subsequent entrant becomes a member of the family unit of the primary visa holder after they are granted the primary visa but before the subsequent entrant applied for their subsequent entrant Student visa.
On the evidence accepted by the Tribunal, it is clear to the Tribunal that Mr Do was a member of Ms Pham’s family unit before Ms Pham was granted her Student visa on 21 September 2016 and before Mr Do applied for his subsequent entrant Student visa on 26 September 2016.
Accordingly, the Tribunal is not satisfied that Mr Do meets cl.500.311 of Schedule 2 to the Regulations.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. Mr Do does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
Other matters – does Mr Do meet the primary criteria for the grant of a Student visa?
As noted in paragraph 14 above, Mr Tran invited the Tribunal to find, in the event the Tribunal found Mr Do did not meet the criteria in cl.500.311, that the Tribunal assess whether Mr Do meets the primary criteria for the grant of a Student (Class TU) visa in his own right as Mr Do had an offer of enrolment in a course of study at the time of the Tribunal’s hearing.
As noted in paragraphs 16 and 17 above, the Tribunal sent Mr Do a letter under s.359A of the Act after the hearing informing Mr Do that his PRISMS record indicated he was not enrolled to study and therefore he did not meet the primary criteria for the grant of a Student visa in his own right under cl.500.211(a) of Schedule 2 to the Regulations. The letter reinforced that a mere offer to enrol was not sufficient to meet this criteria.
The Tribunal did not receive a response from Mr Do to that information.
The only information before the Tribunal is that at the time of this decision Mr Do is not enrolled in a course of study and therefore does not meet the primary criteria in cl.500.211.
The Tribunal therefore finds that Mr Do does not meet the criteria in cl.500.211 to be granted a Student visa in his own right because at the time of this decision there is no information before the Tribunal to indicate that Mr Do is enrolled in a course of study.
On the criteria in cl.500.211 of Schedule 2 to the Regulations the Tribunal must affirm the decision of the delegate to refuse to grant Mr Do a Student visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Michael Ison
Senior Member

[2018] AATA 4757

17 October 2018

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Immigration

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Judicial Review

Procedural Fairness

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