Hassan (Migration)

[2019] AATA 3187

Hassan (Migration) [2019] AATA 3187 (8 April 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anwar Ul Hassan

CASE NUMBER:  1809332

HOME AFFAIRS REFERENCE(S):          BCC2017/3860165

MEMBER:Mark Bishop

DATE:8 April 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 08 April 2019 at 9:39am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – member of the family unit of the primary person – breakdown of relationship – separation of the applicant from the primary applicant – primary applicant withdrew husband’s name from visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), 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 19 March 2018 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 20 October 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. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.311of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was no longer a member of the family unit of the primary person (Sidra ANWAR).

4. The applicant provided a copy of the decision record to the Tribunal.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. On 8 April 2019 the applicant wrote to the Tribunal and advised “the applicant is content for the Tribunal to make a decision on the papers without the need for the applicant to attend the hearing that has been scheduled”.

7. Accordingly and consistent with the advice outlined in paragraph 7 above the Tribunal resolved the matter on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 applicant is a member of the family unit of the primary person.

10. Clause 500.311 of Schedule 2 to the Regulations provides as follows:

    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); 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.

11. The applicant, Anwar Ul HASSAN applied for a student visa (Class TU subclass 500) on 20 October 2017 with primary applicant being, Sidra ANWAR and dependent applicant Zainab HASSAN.

12. At the time of lodgement documents were provided to establish that Anwar Ul HASSAN was a member of the family unit of the primary applicant (Sidra ANWAR).

13. The delegate made a finding the following information was provided to the department and recorded these details in the decision record:

    ·Further information was received by the department in a Form 1022 Notification of change in circumstances received 25 January 2018. The Form 1022 advised the applicant was no longer a member of the family unit of the primary applicant;

    ·Information was received  from migration agent and primary applicant on 30 January 2018 advising of separation of the applicant from the primary applicant;

    ·Form 1446 requesting withdrawal of visa application for Anwar Ul Hassan signed by primary applicant Sidra ANWAR. This form was not signed by the applicant Anwar Ul Hassan was received on 5th and 7th February 2018.

    ·Additional correspondence from primary applicant regarding breakdown of relationship received 16 February 2018.

    ·Form 956 from migration agent advising Anwar Ul Hassan had withdrawn his services as a migration agent and no longer wants the agent to receive correspondence from the Department of Home Affairs received 26 February 2018.

    ·The primary applicant Sidra ANWAR has indicated that the dependent applicant Anwar Ul Hassan would not sign Form 1446 authorising his removal from the current student visa (Class TU subclass 500) Visa application.

14. The primary applicant provided a statement to the department (TF: 119, 103) that outlined the following:

    ·She wished to withdraw the applicant  from her application;

    ·She has separated from the applicant ;

    ·She wished to withdraw her husband’s name from the application for a visa;

    ·She made a conscious decision to separate from her husband;

15. The primary applicant provided a Form 1022 dated 25 January 2018 to the department that recorded her relationship status as “separated’ and address of the applicant as unknown because of separation (Df: 106).

16. The primary applicant provided a copy of an email dated 25 January 2018 to the department that advised the primary applicant was living separately from her partner and is no longer in any relationship with her ex-husband.

17. The primary applicant provided a Form 1446 to the department dated 6 February 2018 that advised she had separated from the applicant on 23 January 2018 and wished to withdraw his application to be attached to her student visa as he used her to get here (Df: 116).

18. The primary applicant provided a further Form 1221 that confirmed the summary outline in paragraphs 14 to 16 above (Df: 133).

19. The primary applicant provided a further statement headed “ Declaration of Change in Circumstance” in which she confirmed her marital relationship with the applicant had broken down, they separated in January 2018 and she sought the removal of her husband from her visa application as she no longer sponsored him (Df: 171).

20. The applicant made a written submission to the Tribunal that the primary applicant left the applicant on 2 January 2018 and the primary applicant retains custody of their child. The applicant lives separately from his wife. The applicant submitted that as he was still legally the spouse of the primary applicant he met the requirement of “member of the family unit of a person (the primary person)” as outlined in r.500.311 of Schedule 2 and outlined in paragraph 11 above.

21. Section 5F of the Migration Ac t provides a definition of spouse as follows:

    MIGRATION ACT 1958 - SECT 5F

    Spouse

    (1)  For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.

    (2)  For the purposes of subsection (1), persons are in a married relationship if:

    (a)  they are married to each other under a marriage that is valid for the   purposes of   this Act; and

    (b)  they have a mutual commitment to a shared life as a married couple to the exclusion     of all others; and

    (c)  the relationship between them is genuine and continuing; and

    (d)  they:

    (i)  live together; or

    (ii)  do not live separately and apart on a permanent basis.

22. The submissions provided by the primary applicant and the applicant as summarised above make it clear the couple do not have a mutual commitment to a shared life together,  are separated from each other, have been separated from each other since January 2018 and do not live together and live separately and apart on a permanent basis.

23. The Tribunal finds the applicant has not been a member of the family unit of the primary applicant on and from 23 January 2018.

24. Accordingly, the Tribunal finds that the applicant does not satisfy s.5F of the Migration Act and hence does not meet cl.500.311 of Schedule 2 to the Migration Regulations.

25. 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

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

    Mark Bishop
    Member