GILL (Migration)

[2019] AATA 5220

GILL (Migration) [2019] AATA 5220 (4 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bakhshish Singh GILL

CASE NUMBER:  1801670

HOME AFFAIRS REFERENCE(S):           BCC2017/3351303

MEMBER:Meredith Jackson

DATE:4 September 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 04 September 2019 at 3:28pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of family unit – primary visa holder’s student visa expired – subsequent visa application refused – pending review application – adjournment request declined – Tribunal’s objectives – existence of de facto relationship prior to grant of visa – not declared in primary visa holder’s application – no finding required – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.07AF; 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 Home Affairs on 10 January 2018 to refuse to grant you a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2.    You applied for the visa on 14 September 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.    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

4.    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 you meet the secondary criteria, in particular cl.500.311, which provides that the regulation is satisfied where:

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 subregulation2.07AF(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

(iii)before the application was made.

5. The delegate in your case refused to grant the visa on the basis that you did not satisfy the requirements of cl.500.311 because you were in a de facto relationship with the primary person Amanjot Kaur, before the grant of the visa, and that you were not declared as a member of her family unit prior to the grant of the visa, as required by r.2.07AF of the Migration Regulations 1994 (the Regulations).

6.    You appeared before the Tribunal on 4 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Kaur, who is now your wife. As discussed in more detail below, you stated that she is in the final days of pregnancy and is suffering depression. The Tribunal noted your wife was present in the hearing room and asked whether you wanted her to give evidence. You stated that you did want her to give evidence. The Tribunal said it would try to make the hearing as comfortable as possible for your wife. You stated that she was all right and in a position to give evidence.

7.    You were assisted in relation to the review by your registered migration agent and assisted in the hearing by an interpreter in the Punjabi and English languages. Your wife did not seek the assistance of the interpreter in giving evidence, but her evidence was interpreted to assist you as the primary review applicant.

Written submissions

8.    Prior to and at the hearing, you submitted documentary evidence to the Tribunal including:

a.A marriage certificate for your marriage in Australia on 14 July 2017;

b.A personal submission dated 20 August 2019, which stated that the delegate was not correct in finding you were in a de facto relationship with your wife prior to the visa application; that de facto relationship is not recognised in Indian law or society and in the lead-up to your marriage you were only in discussion with your family members about the wedding; that uncertainty regarding this visa refusal and appeal process over two years has resulted in your wife having depression and you had a medical opinion that the stress was also affecting your unborn child;

c.A medical certificate stating that your wife has an expected date of delivery of 23 September 2019 and is experiencing pregnancy-related health issues. In the certificate, the medical practitioner states that your wife is undergoing stress and anxiety due to the uncertainty in the visa grant and that this had the potential to impact her health and the wellbeing of the foetus; he requests an early resolution of your visa status.

The hearing

9.    At the outset, the Tribunal explained to you that while the delegate had refused to grant you a visa on the basis that you were in a de facto relationship before the visa application and therefore did not meet r.2.07AF, and did not satisfy cl.500.311, the Tribunal can affirm the decision on any applicable criterion.

1. The Tribunal referred you to the requirements of cl.500.311, and said it was looking at the circumstances that applied at the time of its decision, and the criterion could only be satisfied if, at the time of its decision, you were a member of the family unit of a person (the primary person) who holds a student visa. The Tribunal asked you whether your wife was currently a person who holds a student visa. The Tribunal emphasised to you that this was a mandatory requirement. You responded that Ms Kaur is not a person who holds a student visa, her student visa had expired on 15 March 2019. You added that your wife had applied for a further student visa, but this had been refused on the basis she did not satisfy the financial requirement. You said your wife had applied for a review of that decision and a Tribunal hearing had been set down for 2 October 2019. You requested that the Tribunal take into consideration your wife’s pending review, and postpone a decision in your case until after that matter has been decided.

2. You also stated that you wanted the status of your relationship to be cleared up in the context of your case.

3. The Tribunal explained that it understood that the issue of the status of your relationship was important to you. The Tribunal acknowledged your claim that in Indian society, there was no such thing as a de facto relationship; de facto relationships were it not recognised by law and you could not as a result, have been in a de facto relationship prior to the visa application.

4. The Tribunal said that the concept of de facto relationship was, however, recognised in Australian law, but said that your case at the time of review did not appear to turn on whether you were or were not in a de facto relationship prior to the application. The Tribunal was first concerned with whether your wife was currently a person who holds a student visa. You had indicated that she was not. The Tribunal asked if you understood why it would be concerned with knowing her student visa status and why it was relevant in your case, and you indicated you understood.

5. Your witness, Ms Kaur also gave evidence that she did not hold a student visa, and stated that it had expired prior to the review hearing. She requested that the Tribunal await the outcome of her own review application about the refusal to grant her a further student visa, because she had only been refused on financial grounds and these had been cleared up. She was hoping for a positive outcome from that review.

6. The Tribunal acknowledged your claim that your wife also had a matter before the Tribunal and took this to be a request to adjourn the hearing until after your wife’s matter had been decided. The Tribunal said it had not made up its mind on the issue. The hearing was adjourned while the Tribunal considered the request.

Hearing post adjournment

1. At the resumption of the hearing, the Tribunal stated that it would not further adjourn the hearing on the basis that you were awaiting a review of your wife’s most recent student visa application. While it understood your circumstances in relation to this, they did not alter the fact that a mandatory requirement of the regulations is whether the primary person is a person who holds a student visa, and that this was of initial relevance at the time of decision.

2. The Tribunal referred you to the objectives of the Administrative Appeals Tribunal Act 1975 (AAT Act), which require that in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just economical, informal and quick.

3. In your case, the Tribunal said, there was potential that your wife’s review may not be completed for an unknown amount of time. It was a separate case and the review could be considered to be an indefinite process. As such, awaiting its outcome would not be consistent with the Tribunal’s objectives, as referred to above. It would leave the existing matter in limbo when it was capable of being decided on the evidence before the Tribunal.

4. The Tribunal asked if you or your wife had any further comments to make on any aspect of your case and you stated that you hoped it could be settled in your favour. Your representative asked that the Tribunal make a decision as soon as it could, because you and your wife had been through a great deal. He said it was up to the Tribunal as to whether it should adjourn the hearing and await the outcome of your wife’s review.

Conclusions

1. Having taken into account all your evidence, your submissions to the department and the Tribunal about your de facto status and your documentary and oral submissions concerning your current circumstances, and, having heard the evidence of your wife, the Tribunal is satisfied it should not await the outcome of her review matter before making a decision in your case. As discussed above, the Tribunal’s primary concern is whether, at the time of this decision, you are a member of the family unit of a person (the primary person) who holds a student visa. While the Tribunal concludes you are now a member of your wife’s family unit, this does not outweigh the fact that, at the time of this decision, she is not a person who holds a student visa. The Tribunal is satisfied that on this basis, you cannot satisfy the regulation. 

2. The Tribunal has considered your claim that the delegate was wrong to find you were in a de facto relationship prior to the grant of Ms Kaur’s visa because you could not have been in such a relationship when de facto status has no standing in Indian culture or law. The Tribunal concludes that this aspect of your case requires no finding, because the status of the relationship is not the initial concern of the Tribunal in coming to a decision in your case.

3. In relation to your claims that the application and review process has taken a toll on your wife’s health and that your long immigration pathway has the potential to affect the health of your unborn child, the Tribunal finds some credibility in your argument that the process has been difficult. The concerns you feel as a partner and prospective parent about the health of your family are acknowledged and understood. The Tribunal shares your regret that the birth of your first child, which is one of any family’s most important events, has been to an extent overshadowed by the immigration circumstances you are in. However as emphasised at the start of your hearing, the Tribunal is bound by the law and the law is clear in your case: the grant of a student visa to a subsequent entrant relies on the primary person being a person who holds a student visa. At the time of this decision, and as extensively discussed with you in the hearing, Ms Kaur is not such a person.

4. The Tribunal concludes that on the basis that Ms Kaur (the primary person) is not the holder of a student visa as required at the time of this decision, you do not satisfy the secondary criteria. Accordingly, the Tribunal is not satisfied that you meet cl.500.311.

5. 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

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