Lee (Migration)

[2018] AATA 3413

Lee (Migration) [2018] AATA 3413 (16 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chee Cheng Lee

CASE NUMBER:  1731622

HOME AFFAIRS REFERENCE(S):           BCC2017/3342380

MEMBER:Mark Bishop

DATE:16 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.311of Schedule 2 to the Regulations.

Statement made on 16 July 2018 at 4:21pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Separated with applicant – Notification of change in circumstances – Relationship resumed – Applicant’s citizenship – Official marriage certificate – 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 Immigration and Border Protection on 6 December 2017 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 13 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. 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 a member of the primary person’s family unit when the application for a student visa was lodged and was not declared as required by Regulation 2.07AF the applicant failed to satisfy cl.500.311

4. The Tribunal resolved the matter on the papers.

5. In this matter the applicant is Mr Chee Cheng LEE the husband of the primary person. The primary person is Ms Run Ling CHAN.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Clause 500.311 relevantly provides:

   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.

8. Regulation 2.07AF  Applications for Student (Temporary) (Class TU) visas relevantly provides:

   (3) An application by a person who seeks to satisfy the primary criteria (the primary applicant) must include:

   (iii)  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

   (iv)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.

9. The applicant provided a copy of the decision record to the Tribunal. It provided s follows;

   • The primary person, Ms Run Ling CHAN, lodged a current Student TU-500 visa application on 2 May 2017, declared her relationship status as “separated”. She did not include any dependent applicants or declare any family members.
   • The primary person’s TU-500 visa application granted 5 September 2017 was valid until 17 June 2020.
   • On 13 September 2017, the applicant applied to be added as a dependent to the primary person’s TU-500 visa. As part of this application, he provided a marriage certificate. This marriage certificate showed the date of marriage of the applicant and the primary person as 22 June 2016.
   • The student visa application of the primary person was granted on 5 September 2017. The applicant became a member of primary person’s family before the primary person was granted a student visa. The primary person failed to declare the applicant as a dependent as required by Regulation 2.07AF so failed to satisfy cl 500.311.

10. The Tribunal provides a timeline of events as follows:

    • The applicant and the primary person were married on 22 June 2016 (marriage certificate provided at Tf: 34);
    • In their statutory declarations submitted to the Department, the applicant and primary person state that they were separated from the end of April to the end of May 2017 (Df: 37 & 45);
    • The primary person lodged her application for a Student TU-500 visa on 2 May 2017. In her application, the primary person provided her relationship status as ‘separated’ (Tf: 29);
    • On 19 July 2017, the primary person submitted a ‘Notification of changes in circumstances’ form to the Department, advising that she had reunited with her husband and requesting that his name be added to her application (Tf: 39). In this form, the primary person stated the applicant’s name and date of birth and specified that the applicant was her husband, however, did not specify the applicant’s citizenship.
    • The primary person’s visa application was granted on 5 September 2017.

11. The applicant submitted the following to the Tribunal:

    ·On or about 19 July 2018 the primary person submitted a notification of change of circumstance form to the Department. This advice was to the effect she had resumed her relationship with the primary person and she would like to add her husband’s name into the student visa and she also advised she notified change of status  from separated to married;

    ·The primary person also gave her husband’s name, date of birth and included a  copy of their official marriage certificate;

    ·The marriage certificate included her husband’s full name, date of birth and citizenship information;

    ·The primary person submitted she had included all the required information and requested DIBP add the applicant into the student visa of the primary person as a member of her family unit before the grant of a student visa. Accordingly as the primary person had provided all relevant information as required by r.2.07AF(4) the applicant satisfied cl. 500.311(a) in Schedule 2 to the Migration Regulations.

12. The applicant also made reference to the PAM used by Departmental officers. The applicant provided an extract from the relevant paragraph in the PAM that provides “…officers are to ensure details of the new family member are recorded by adding the spouse to the application as a non-accompanying member to the application…”

13. The applicant provided a copy of the relevant form “Notification of changes in circumstances” provided to the Department on 19 July 2017 at 11.20AM AEST. This document supported the submission of the applicant.

14. The applicant submitted an officer of the Department may not have recorded the information the primary person provided to the DIBP before the grant of the student visa and as a result the applicant was not recorded in the application as a member of the family unit. The Tribunal has no way of knowing if and when details of notification of changes to circumstances are entered into Departmental files and if a time record of any such entries is maintained.

15. This document did not contain the citizenship details of the primary person as required by r.2.07AF(4).

16. The Tribunal turns to consider r.2.07AF(4).

17. The Tribunal is satisfied that the applicant and primary person were separated at the time of the primary person’s visa application. The Tribunal is of the view r.2.07AF(4)(b) of the Migration Regulations 1994 is satisfied as the primary person notified the Department that her relationship with the applicant had resumed before the grant of the primary person’s visa.

18. However the primary person did not specify the applicant’s citizenship at this time. Hence r.2.07AF(4)(a) also needs to be satisfied.

19. The Tribunal is of the view the Department was aware of the applicant’s citizenship by virtue of the fact that the applicant was residing in Australia as the holder of a Student TU-570 visa at the time of the primary person’s application. The applicant would have informed the Department of his citizenship when applying for his 5 previous visas. It seems likely that the requirement to specify the citizenship of the person becoming a member of the family unit of the primary person is aimed more towards offshore applicants where the Department would not already be in possession of this information.

20. In these circumstances r.2.07AF(4) is satisfied as the applicant became a member of the family unit of the primary person before the time of application and the primary persons’ student visa application did include all relevant details as required in r.2.07AF(4)(a).

21. Accordingly the Tribunal finds that the applicant does meet cl.500.311.

    Conclusion on cl.500.311

22. Accordingly, the Tribunal is satisfied that the criteria for the grant of a Student (Subsequent Entrant) visa are met by the applicant.

23. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

24. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.311 of Schedule 2 to the Regulations.

    Mark Bishop
    Member