Dommata (Migration)

[2019] AATA 2181

Dommata (Migration) [2019] AATA 2181 (20 February 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Ram Swaroop Reddy Dommata

CASE NUMBER:  1701982

DIBP REFERENCE(S):  BCC2016/2884193

MEMBER:  Bridget Cullen

DATE AND TIME OF

ORAL DECISION AND REASONS:          20 February 2019 at 11:26 am (QLD time)

DATE OF WRITTEN RECORD:               5 March 2019

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decision under review.

Statement made on 05 March 2019 at 3:02pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – member of the family unit of a primary person who holds a student visa – primary person failed to declare applicant as family member – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.07AF; Schedule 2, cl 500.311

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 January 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

1. At the hearing on 20 February 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 January 2017 to refuse to grant the applicant a student (temporary) (class TU) student subsequent entrant subclass 500 visa. The decision was made by the delegate in accordance with section 65 of the Migration Act 1958.

1. The applicant applied for the visa on 30 August 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 student guardian visa.

1. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.311 of schedule 2 to the Migration Regulations 1994 because the delegate believed the applicant became a member of the family unit of the primary person before the grant of the visa to the primary person and the primary person failed to declare or include him as a member of her family unit in her previous student visa application.

1. The primary person is the applicant's wife Ms Bussa. She is the holder of a current student visa. The criteria for a subclass 500 student visa are set out in part 500 of schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 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 to satisfy the secondary criteria.

1. The applicant has provided a copy of the delegate's decision record to the tribunal in conjunction with the review. The decision record outlines the following. The applicant's spouse Thejaswini Bussa was granted a TU 573 student visa on 30 June 2016. In her application that was lodged on 22 June 2016 she did not declare any family members.

1. The applicant lodged his application on 30 June 2016 asking to be added as a dependent to his wife's visa application. The applicant provided a copy of the marriage certificate indicating that he and Ms Bussa had been married on 11 April 2016, which is prior to Ms Bussa's visa being granted. Again, the tribunal indicates that Ms Bussa did not include the applicant as a family member in her application.

1. As a consequence, the delegate found that the applicant was not included in Ms Bussa's application and he was a member of her family prior to her visa being granted and therefore the delegate found that he could not be satisfied that the applicant met subregulation 2.07AF(3). On that basis, the delegate found that the applicant failed to satisfy the requirements of clause 500.311(a)(i) and therefore did not satisfy the requirements of clause 500.311.

1. The applicant has appeared before the tribunal and explained that he was once studying in Australia as well, but because his wife is a brilliant student, he decided to forego his own studies in favour of supporting her. He explains that he was using, along with his wife, a migration agent. He says that he provided information to the migration agent that may not have been taken into account by the migration agent in making the application.

1. The tribunal is unable to comment on the exchange between the applicant, his wife and the migration agent, but has made the applicant aware that MARA is the relevant regulatory agency.

1. The applicant acknowledges that the date of his marriage on 11 April 2016 is correct. It is clear that the applicant's marriage to the primary person was before the date of her application.

1. On this basis, and in view of the applicant's acknowledgement, that the dates reflected in the delegate's decision record are correct, the tribunal is satisfied that he cannot meet either of cl. 500.311(a) or (b), and on this basis the tribunal finds that the applicant cannot meet clause 500.311 as a whole.

1. For these reasons, the tribunal affirms the decision under review and finds that the applicant does not meet the criteria for the grant of a student subsequent entrant visa.

DECISION

1. The Tribunal affirms the decision under review.

Bridget Cullen Member