Leng (Migration)

[2018] AATA 4143

Leng (Migration) [2018] AATA 4143 (14 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mingxiao Leng

CASE NUMBER:  1723899

HOME AFFAIRS REFERENCE(S):           BCC2017/2792765

MEMBER:Mark Bishop

DATE:14 September 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.500.311 of Schedule 2 to the Regulations.

Statement made on 14 September 2018 at 3:02pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – member of the family unit – de facto relationship with a person that holds a student visa – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.12 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 20 September 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 5 August 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 not the member of the family unit of an applicant for, or of a holder of, a Student visa.

4. The Tribunal resolved the review application on the papers.

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 matter should be remitted for reconsideration.

   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.

   Other criteria - Clause 500.311

8. The delegate made a finding there was a penury of evidence that supported the applicant’s claims that they are in a de facto relationship; rather what evidence that was provided tends to show that their relationship is one where they have combined their affairs, share resources, effort and support for each other in circumstances normally applicable to persons sharing accommodation and not a couple that is together with the intention of remaining in a long term personal relationship.

9. The Tribunal has regard s.5CB(2). In assessing whether the factors in s.5CB(2) exist the Tribunal has followed  sub regulation 1.09A(4) and considered the circumstances mentioned in sub regulation 1.09A(3).

10. The applicant provided a lengthy statement to the Tribunal (TF: 111) that outlined the beginning of their relationship, the evolution of their emotional attachment, the introduction to parents and friends, their love for each other, consultation with and approval of family to formally living together, financial support from their respective families, public and social recognition of their relationship and plans for the future and marriage.

11. The applicant provided a detailed Statutory Declaration to the Tribunal, a number of Form 888 statements (Statutory Declaration by a supporting witness to a Partner or Prospective Marriage visa application) signed and witnessed as appropriate, a Relationship Certificate dated 9 June 2017, supporting information inclusive of  travel documentation, utility bills, joint bank accounts, address and residency detail, accounts and bills showing address detail, memorabilia of significant social occasions showing the applicant and partner as a couple, and witness statements as to the fact the couple live together in a emotionally committed permanent relationship destined by outlook, behaviour, practice, commitment and intention to formal marriage.

12. The Tribunal finds the applicant has been in a de facto relationship with Ms Luo. Accordingly the applicant meets r.1.12(6)(a). As such r.1.12(6) is met.

13. The Tribunal finds the applicant is a member of the family unit of a person who holds a student visa.

14. The Tribunal finds the criteria for the grant of a student visa are met by the applicant.

15. Accordingly, the Tribunal is satisfied that the applicant meets cl.500.311.

16. 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

17. 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