Jara Chocano (Migration)

[2020] AATA 5766

Jara Chocano (Migration) [2020] AATA 5766 (5 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Amanda Martina Jara Chocano

CASE NUMBER:  1821646

HOME AFFAIRS REFERENCE(S):          BCC2017/1045222

MEMBER:M. Edgoose

DATE:5 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 05 October 2020 at 10:50am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– not the member of the family unit of a person, the primary person, who holds a Student visa –– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 2.07, 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 23 July 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 16 March 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.500.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was a member of the family unit of the primary person prior to the grant of his student visa, but was not included as a family unit member in that application. Accordingly, the applicant did not satisfy cl.500.311.

4. The applicant appeared before the Tribunal via telephone on 5 October 2020 to give evidence and present arguments. As the applicant is only a three and half year old child the Tribunal received the oral evidence from Mr Felipe Alberto Jara Munoz, the primary person and father of the applicant.

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

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.

8. The issue in this case is whether the applicant meets cl.500.311 of Schedule 2 to the 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); 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;

   (ii)and before the application was made.

9. Regulation 2.07AF requires the following:

   (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)  Sub regulations (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.

10. At hearing all answers to the questions asked by the Tribunal were made by the applicant’s father, the primary person and the registered migration agent.

11. The Tribunal adopted the procedure in section 359AA of the Act and put to the applicant that it had on the file a copy of the applicant and primary persons, Movement Records.  The Tribunal explained to the applicant what the Movement Records are and that she is currently on a Bridging visa B. The Tribunal further explained that, according to the primary persons Movement Records, the primary person is also currently the holder of a Bridging visa B. The primary person’s Bridging visa was granted on 18 March 2020. The Tribunal explained to the applicant why this information was relevant to the review. It explained to the applicant the consequences of the Tribunal relying on the information. The Tribunal confirmed with the applicant that she understood the information and how the information was relevant to the review. The Tribunal advised the applicant that the she could comment on or respond or seek additional time to comment on or respond. The applicant did not elect additional time be granted and chose to comment at the hearing. The applicant said that the information as presented, namely that the primary person was the holder of a Bridging visa B and that the primary person is no longer the holder of a Student visa. 

12. The Tribunal notes that on 2 January 2018 the primary person appeared before the Administrative Appeals Tribunal (AAT). On this day his merit review was affirmed by the AAT. Following the decision by the AAT the primary person appealed to Federal Circuit Court (FCC). At time of this decision a date by the FCC is still to be set for the primary person’s matter. 

13. The Tribunal acknowledge that the applicant is the daughter of the primary person however, clause 500.311 requires that the applicant is a member of the family unit of a person, the primary person, who holds a Student visa. The primary person’s Student visa in relation to this matter ceased on 22 March 2017. Since 22 March 2017 the primary person has held either a Bridging visa A or Bridging visa B and is no longer the holder of a Student visa. Given this the Tribunal finds the applicant is not the member of the family unit of a person, the primary person, who holds a Student visa and therefore does not satisfy cl.500.311.

14. The Tribunal has given some regard to the submissions made by the applicant in relation to being, a member of the family unit of the primary person. However, given the primary person is not the holder of a Student visa the Tribunal finds that this information is not relevant at time of this decision. 

15. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.311.

16. 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

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

    M. Edgoose
    Member