Lopes (Migration)

[2019] AATA 1929

Lopes (Migration) [2019] AATA 1929 (11 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Agata Janaina Lopes

CASE NUMBER:  1711301

HOME AFFAIRS REFERENCE(S):           BCC2017/161802

MEMBER:Wendy Banfield

DATE:11 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 June 2019 at 11:46am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – member of primary applicant’s family unit – applicant did not satisfy the requirements – engaged in Brazil –applicant not included in visa application – in relationship prior to applying for student visa– strict requirements – family member’s details must be included at time of application – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 500.211-500.218, 500.311, r 2.07AF

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 17 May 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 12 January 2017. At the time of application, the primary applicant held a Class TU Subclass 500 (Student) visa. The applicant applied for a subsequent entrant visa to accompany the primary visa holder who was studying in Australia.

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). This was because she provided evidence of being in a relationship with the primary applicant prior to him being granted a Student Visa but was not declared to be a member of his family unit at the relevant time.

4. The applicant appeared before the Tribunal on 21 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the primary applicant, Mr Thiago Henrique Silva. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

   Evidence of the applicant

5. The applicant confirmed she understood why the Department had refused her application for a Student Visa as a secondary applicant. In Brazil the applicant said she and her husband were engaged but she had not been included on the student visa application because they were not married and were simply boyfriend and girlfriend. She said in Brazil a family member means either a spouse or child of that person. The applicant said she was not married at the time and did not have any proof of the relationship. Regarding her statement submitted with her application indicating the parties were living together in Brazil, the applicant said although they were engaged, they did not consider themselves de facto because they had their own residences and would just spend time together. The Tribunal asked about the applicant’s statement to the Department more specifically in which she said she and Mr Silva were in a relationship for three years and were engaged and living together in a house when he had the opportunity to study in Australia. The applicant claimed that practically Mr Silva lived in his own house with his parents and only stayed overnight with her. She said Mr Silva had given this information about his living arrangements in his original application. According to the applicant she only considered herself part of the family unit of Mr Silva after they got married.

6. The applicant was asked about the documents she submitted to the Tribunal. She said there was a tenancy agreement and documents in relation to a former residence as proof they are living together in Australia. A marriage certificate and a medical document were submitted, the latter as proof of address only. The other documents submitted were in relation to Mr Silva’s studies.

7. The applicant said she and Mr Silva only decided to get married once they came to Australia because they had been engaged in Brazil. She said an engagement means you will get married in future. The applicant said she came to visit Mr Silva in Australia and he asked her to get married. The applicant held a Visitor Visa on 28 November 2016 when she arrived and she has been in Australia ever since. The applicant advised she has a son in Brazil who stays with his paternal grandparents and family due to there being a better school in the area. In conclusion the applicant said her intention in being in Australia is to accompany Mr Silva while he studies. She said Mr Silva works and she has some income from Brazil as well as savings.

   Evidence of the primary applicant – Mr Thiago Henrique Silva

8. The witness confirmed he was aware of the issue in the case which is, the applicant not being included in his visa application as a member of his family unit at the relevant time. Mr Silva said that before they came to Australia they were boyfriend and girlfriend which in Brazil is the same as being engaged. He said to be part of a person’s family means being in a marriage. Regarding a de facto relationship, Mr Silva said it was the same as boyfriend/girlfriend. He then referred to living together now and having a certificate of marriage. The Tribunal asked about living arrangements in Brazil. According to Mr Silva, he was living with his parents and the applicant would stay over for three or four days, but never for long and not full time.

9. Mr Silva stated the applicant came to Australia in November 2016 and they were married in January 2017. When asked why they had done this, he referred to the applicant having a child who was with grandparents for holidays then stayed to attend a new and better school. Mr Silva said he surprised the applicant by asking her if she wanted to get married when she came to Australia. The Tribunal asked him to elaborate on why they married in Australia when the applicant had arrived as a short-term visitor. He said he felt it was a good time to do it because he loved her. The Tribunal then advised the applicant that according to his Marriage Certificate they married in December 2016, not January 2017 as he had stated. In response the applicant said he had mixed up the date with when they applied for the applicant’s visa which was January 2017.

10. The applicant claimed that when he applied for his student visa he stated that he only had a girlfriend. He said he thought it would be illegal to include the applicant as a family member when he had not married her at that time. The Tribunal noted the applicants had stated they were in a relationship prior to him applying for a Student Visa. The witness referred to Facebook pages submitted which included evidence of trips together. The witness concluded by referring to the benefits of him studying in Australia and that he loves the applicant and wants her to be able to stay.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 meets the criteria for the grant of a Student Visa as a member of the family unit of the primary applicant. Clause 500.311 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) before the application was made.

    The relevant subregulation r.2.07AF(3) referred to in Clause 500.311 provides that:

    Applications for Student (Temporary) (Class TU) visas

    …(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 application; and

    (b) the relationship between the person and the applicant.

13. The issue to be determined is whether the applicant was a member of the family unit of Mr Silva at the time he applied for his Student Visa in which case she should have been included on his application form; or, if she became a member of his family unit after the grant of his Student Visa and before her application was submitted.

14. The applicant’s visa was refused because the Department determined she had not been included as a member of the family unit of Mr Silva when he applied for a Student Visa. When applying for the Student (Subsequent Entrant) visa a document had been submitted entitled ‘Evidence of Relationship’. The applicant declares as follows: We, Thiago and Agata, are in a relationship for three years… We were engaged and living together in a house when came the need and opportunity for Thiago to study in Australia… Facebook photos were submitted of the applicant and Mr Silva together between 2014 and 2017 that according to the statement, “prove our relation[ship]”. At the time of application, the parties were seeking to demonstrate they had been engaged and living together in Brazil in circumstances that are indicative of a de facto partner relationship. On the basis of that evidence, the Department found the applicant became a member of the family unit of the primary person before the grant of the visa to the primary person and the primary person failed to include the current applicant as a member of the family unit, therefore, cl.500.311 was not satisfied.

15. In evidence to the Tribunal, the applicant and Mr Silva sought to explain why the applicant was not included in the family unit of Mr Silva. Following the applicant’s visa refusal, both parties sought to minimise the extent of their relationship to one of just boyfriend/girlfriend declaring that in reality, they did not live together. It was submitted Mr Silva lived with his parents; the couple stayed together for a certain amount of days, but were not co-habiting full-time. The applicant claimed she only considered herself part of Mr Silva’s family once they married which occurred in Australia.

16. The Tribunal has considered the evidence and the submissions in this case. The original statement to the Department declared that prior to Mr Silva being granted a Student Visa, the couple had been together for three years, and were engaged and living together in a house in Brazil. This indicates they were a family unit at the time and the applicant should have been included on Mr Silva’s Student Visa application. The Tribunal does not accept the contradictory later evidence that in fact they were only girlfriend and boyfriend and were not living together permanently. At the Tribunal hearing both parties attempted to nuance the relationship to suggest it did not constitute a de facto marriage to explain why the applicant was not included as a member of the family unit. The Tribunal prefers the original, unqualified evidence to the Department as being more credible.  The requirement to include members of the family unit is a strict requirement. The family member’s details must be included at the time of application and the Tribunal does not have discretion to waive that requirement.

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

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

    Wendy Banfield
    Member