Khonthas (Migration)

[2017] AATA 628

Khonthas (Migration) [2017] AATA 628 (26 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Chananath Khonthas

CASE NUMBER:  1608005

DIBP REFERENCE(S):  BCC2016/830892

MEMBER:Lilly Mojsin

DATE:26 April 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the meets the following criteria for a Subclass 573 Higher Education Sector visa::

·     cl. 573.314 of Schedule 2 to the Regulations.

Statement made on 26 April 2017 at 3:39pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – cl 573.314 – Member of the family unit of primary person – Partnership declared in visa application – Time of application requirement – Substantial evidence of de facto relationship – Registration of relationship

LEGISLATION

Migration Act 1958, ss 65, 360(2)(a)

Migration Regulation 1994, Schedule 2 cl 573.314, r 1.03, r 1.12

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 Immigration on 16 May 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under s.65 of the Migration Act 1958 (the Act).

2. The primary person Patchara Saipattana lodged an electronic visa application for a Student Class TU subclass 573 visa on 25 May 2015 and the visa was granted to him on 29 May  2015. 

3. The visa applicant applied for the visa, as a member of the family unit of a person (the primary person) on 25 February 2016. The delegate refused to grant the visa on the basis that the applicant did not meet cl.573.314 as the delegate was not satisfied that the primary person had declared the applicant as his de facto spouse in his visa application.

4. In reaching its decision the Tribunal did not find it necessary to conduct a hearing, as it was able to decide the review in the applicant's favour on the basis of the material before it: s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue before the Tribunal is the whether the applicant is a member of the family unit of the primary person Patchara Saipattana for the purposes of Act and the Regulations.

6. The Tribunal has before it the Department file relating to the applicant, including submissions to the Department and a substantial amount of evidence that the couple live together in a de facto relationship.

7. The file indicates that the primary person declared the applicant as his de facto partner in his visa application and declared that they had been co-habiting since 17 November 2014.

   REASONS AND FINDINGS

8. The issue before the Tribunal is whether the applicant meets cl. 573.314, a time of application requirement, as a member of the family unit of a person (the primary person).

9. This depends upon whether the primary person gave evidence to the Department evidence that the applicant became a member of his family unit, before or after the decision was made to grant the primary person a subclass 573 visa.

10. Clause 573.314 relevantly states:

    (1) If the applicant claims to be 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, the applicant meets subclause (2) or (3).

    (2) The applicant meets this subclause if:

    (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

    (b) the applicant was included in the primary person's application under subregulation 2.07AF or

    (3) ………..

11. Subregulation 2.07AF(3) relevantly states:

    (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.

12. 1.03 provides that member of the family unit has the meaning set out in regulation 1.12 of the Regulation.

13. Reg 1.12 of the Regulations provides

    (2) A person is a member of the family unit of an applicant for a Student (Temporary) (Class TU) visa if the person is:

    (a) a spouse or de facto partner of the applicant; or

    (b) …………..

14. The Tribunal finds that the primary person has declared the applicant as his de facto spouse in his application for a student visa made on 25 May 2015 and the visa was granted to him on 29 May 2015.  Substantial evidence exists on the file, including bank accounts, photo of the couple, lease agreements and travel information for the Tribunal to accept that the applicant and the primary person lived together in a de facto relationship. They had registered their relationship in Queensland on 17 November 2014.  

15. The Tribunal is satisfied that the primary person provided information that meets the requirements of subregulation 2.07AF(3) in his visa application made on 25 May 2015.

16. If a person claims to be in a de facto relationship for the purposes of a visa application then reg. 2.03A is required to be met, at the time of decision.

17. Subregulation 2.03A(1) states that the criteria in subreg (2) and (3) are prescribed and state:

    (2)  If a person mentioned in subregulation (1) applies for a visa:

    (a)  the applicant is at least 18; and

    (b)  the person with whom the applicant claims to be in a de facto relationship is at least 18.

    (3)  Subject to subregulations (4) and (5), if:

    (a)  a person mentioned in subregulation (1) applies for:
      ………………….  

    (iii)  a Student (Temporary) (Class TU) visa;

    and

    (b)  the applicant cannot establish compelling and compassionate circumstances for the grant of the visa; the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.

    (4)  ……………..

    (5)  Subregulation (3) does not apply if the de facto relationship is a relationship that is registered under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those Regulations.

18. The  applicant and the primary person are over 18 years of age and their relationship was registered on 17 November 2014. The Tribunal finds that subreg. 2.03A(2), and subreg. 2.03A(5) is met. The Tribunal finds that the applicant therefore meets clause 573.314(2).

19. The Tribunal finds that the applicant is a member of the family unit of the primary person and that cl.573.314 is met. 

    DECISION

20. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the meets the following criteria for a Subclass 573 Higher Education Sector visa:

    ·cl. 573.314 of Schedule 2 to the Regulations.

    Lilly Mojsin
    Member