K C Parajuli (Migration)

[2020] AATA 3608

K C Parajuli (Migration) [2020] AATA 3608 (1 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shanta K C Parajuli

CASE NUMBER:  1826491

HOME AFFAIRS REFERENCE(S):          BCC2017/536772

MEMBER:Stephen Witts

DATE:1 September 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 01 September 2020 at 12:03pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of family unit – primary applicant husband found not to hold student visa – applicant and husband now divorced – decision under review affirmed

LEGISLATON

Migration Act 1958 (Cth), s 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 28 August 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 8 February 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 delegate was not satisfied that 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.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, and economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant did not raise any concerns as to conducting a review hearing by phone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant appeared before the Tribunal 1 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

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 applicant is a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa.

   cl.500.311

   The applicant is a member of the family unit of the 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 some regulation 2.07AF(3); or

   (ii)information provided in relation to the primary persons application under some regulation 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.

8. According to the delegate’s decision record provided to the Tribunal by the applicant dated 28 August 2018 the applicant was refused their application for a dependent student visa on the basis that the primary applicant, Maheshwar Parajuli, was found not to hold a student visa.

9. The Tribunal has considered all the material provided by the applicant and evidence taken at hearing. In particular the Tribunal has considered a submission and statement by the applicant dated 18 August 2020 where the applicant has stated that she was divorced from her husband in September 2018 and that she was not aware of her husband’s visa status or history but understands that he has now remarried. The Tribunal had a discussion with the applicant in regard to whether at the time that she made her dependent student visa application that her husband was without a student visa. The Tribunal notes that the applicant seemed unsure of the primary applicant’s visa status. The Tribunal has considered this and finds that it does appear that the primary applicant was not a student visa holder at that time and that therefore the applicant was not a member of the family unit of a person who holds a student visa having satisfied the primary criteria for that visa and the Tribunal also notes that the applicant and the primary applicant were divorced in September 2018 and have not been a family unit since that time.

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

11. 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

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

    Stephen Witts
    Member