Dwijaksara (Migration)

[2021] AATA 826

Dwijaksara (Migration) [2021] AATA 826 (26 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr I Wayan Arya Dwijaksara

CASE NUMBER:  1934559

HOME AFFAIRS REFERENCE(S):          BCC2019/4920679

MEMBER:Mark Bishop

DATE:26 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 26 March 2021 at 9:56am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – secondary applicant to de facto partner’s application – not included in partner’s application – subsequently married in legally-recognised religious ceremony – no concept of de facto partnership under law of home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.07AF(3), Schedule 2, cl 500.311(a)

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 Home Affairs on 21 November 2019 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 October 2019. 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.500.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the primary person failed to include the applicant as a member of her family unit when she applied for a student visa on 21 July 2019.

4. In this review application the primary person is Kadek Desi KORINA. She is the holder of a Student visa. In this case the secondary person and the review applicant are the same person, Mr I Wayan Arya DWIJAKSARA. 

5. The applicant appeared before the Tribunal on 26 March 2021 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 her family unit at the time of application for her student visa.

8. The issue in this case is whether the applicant meets 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);
   
   (b) the applicant became a member of the family unit of the primary person:
   
   after the grant of the student visa to the primary person;
   (ii) and before the application was made.

9. On 21 November 2019 the delegate found as follows:

   ·The applicant applied for a subsequent entrant dependent student visa (Subclass 500) on 1 October 2019 on the basis that he was the member of the family unit of a person holding a student visa, Kadek Desi KORINA.

   ·The applicant stated their de facto relationship commenced in February 2018.

   ·The delegate found that the primary person did not include the review applicant in her student visa application as an unaccompanied or accompanying family member. The primary person declared their relationship status as never been married or in a de facto relationship at time of lodgement. The delegate made a finding that the secondary person (review applicant) did not meet the criteria set out in cl.500.311 of the Regulations.

10. The applicant provided the following information to the Tribunal:

    ·Review applicant’s application for a student (Subsequent entrant) visa.

    ·Student Visa Conditions for primary person.

    ·Submission from the applicant dated 21 September 2019 outlined the following:

    o   The primary person did not declare the review applicant on their student visa application due to lack of knowledge and limited research.

11. Timeline of visa applications:

    ·Review applicant and primary person state they were in a de facto relationship since February 2018.

    ·The primary person and the review applicant commenced living together on 20 June 2018.

    ·The primary person, Kadek Desi KORINA applied for a student visa on 21 July 2019.

    ·The primary person, Kadek Desi KORINA student visa application was approved on 20 August 2019.

    ·The review applicant I Wayan Arya DWIJAKSARA applied for a student (Subsequent entrant) visa on 1 October 2019.

    ·The primary person and the review applicant were legally married in a religious ceremony on 11 November 2019.

12. The applicant gave evidence to the Tribunal. He explained he was legally married to the primary person in Indonesia on 11 November 2019 in a religious ceremony. The couple had been unable to get married in a civil service since that time because of residency in Australia and complications deriving from Covid-19. He advised this was a legally binding marriage ceremony and in Indonesian law he was married to the primary person. He further advised Indonesian law did not recognise the concept of de facto and that was the reason the primary person had provided an incorrect response to her marriage status. He agreed the primary person had failed to disclose the detail of her de facto relationship.  He advised the Tribunal he understood that in the determination of the review application the Tribunal had regard to Australian law (as to the status of a de facto relationship) and not Indonesian law or Indonesian societal custom and practice. He advised the Tribunal he and the primary person had been in a committed genuine relationship to the exclusion of all others since 18 February 2018 and had lived together since 20 June 2018. The applicant advised the primary person’s course of study would finish in November 2021. At that time the couple would return to Indonesia. The applicant advised the Tribunal he was aware of his legal rights in Australia.

13. The Tribunal examined the file and the Tribunal is satisfied that the finding of the delegate is correct. The applicants were in a de facto relationship since February 2018. The primary person applied after this date on 21 July 2019 and failed to include the secondary applicant on the visa application.

14. The Tribunal is satisfied the applicant became a member of the family unit of a person (the primary person) who holds a student visa before the grant of the student visa to the primary person and was not (emphasis added) included in the primary person’s application under sub regulation 2.07AF(3). Hence the applicant does not meet cl.500.311(a) of the regulations

15. The Tribunal is satisfied the applicant became a member of the family unit of the primary person in 6 February 2018. This date is prior to the date of issue of a student visa to the primary person on 20 August 2019 (see paragraph 12 above). Hence cl.500.311(b) is not relevant.

16. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.311 of the Regulations.

17. 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

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

    Mark Bishop

    Member