Makwasa (Migration)

[2017] AATA 3189

Makwasa (Migration) [2017] AATA 3189 (23 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rehema Sospeter Makwasa

CASE NUMBER:  1514832

DIBP REFERENCE(S):  BCC2015/2990861

MEMBER:Gabrielle Cullen

DATE:November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 23 November 2017 at 9:41am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Requirement for primary applicant to inform the Minister of de facto relationship – Minister not informed of de facto relationship by time of primary decision

LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, r 2.07AF(3)-(4), Schedule 1, Item 1222, Schedule 2, cl 572.314

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 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 to the Department of Immigration for the visa on 9 October 2015. The delegate decided to refuse to grant the visa on 20 October 2015. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. With her application, the applicant provided statements and documents to support the genuine nature of the relationship, including a statement of how she met her husband, John Joseph Kasonde, a personal statement from John Joseph Kasonde and letters of support as to the genuine nature of the marriage. The evidence indicates the applicants met in 2013, began living together in November 2014 and were married on 21 May 2015.

4. The delegate decided to refuse to grant the visa on 20 October 2015. According to the delegate’s decision, a copy of which was provided to the Tribunal by the applicant, Mr Kasonde did not declare the applicant as a member of his family unit in his previous application for a student visa.

5. The applicant applied for a review of the delegate’s decision.

6. In support of her application for review the applicant provided evidence as to the genuine nature of the relationship as claimed between her and Mr Kasonde. Information provided included photographs of the wedding and of their child and evidence that they are living together.

7. The applicant and Mr Kasonde appeared before the Tribunal by video on 21 November 2017 to give evidence and present arguments. The Tribunal explained the requirements of cl.572.314. The applicant initially indicated that she had been in a de facto relationship with Mr Kasonde from November 2014 living together and sharing household chores and finances, similar to a married couple. She advised that she and Mr Kasonde were married in May 2015 and had a baby together in October 2017. The baby was also present at the hearing. When the Tribunal raised its concerns under s.359AA that Mr Kasonde in his application dated 6 March 2015 did not indicate he was in a de facto relationship, nor refer to the applicant rather said he was never married, she responded and repeated that it was because he had issues with his ex-fiancée and the bride price. She said this was finalised in April 2015. She said her husband could not refer to her in the application or a relationship with her otherwise he would be sued. The Tribunal questioned this evidence as she had said they were in a de facto relationship from November 2015. It also questioned why her husband would be concerned as to this in a confidential application.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. The issue in the present case is whether the applicant satisfies the criteria set out in cl.572.314.

   572.314

   [572.314] (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).

   [572.314] (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(3) or in information provided in relation to the primary person’s application under subregulation 2.07AF(4).

   [572.314] (3)    The applicant meets this subclause if the applicant became a member of the family unit of the primary person:
       (a)    after the grant of the student visa to the primary person; and
       (b)    before the application was made.

   [2.07AF] (3)      An application made on form 157A, 157A (Internet), 157E or 157G 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.

   [2.07AF] (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. 

10. The Tribunal accepts that the applicant and Mr Kasonde are in a genuine relationship. Based on their evidence to the Department and that initially provided at hearing the Tribunal finds that they commenced a de facto relationship in November 2014. While the applicant later in the hearing gave evidence as to why Mr Kasonde did not refer to their relationship, due to having to finalise the bride price with an ex-fiancée and a fear of being sued and therefore did not believe they were in a relationship, this is contrary to earlier evidence. The Tribunal places weight on the initial evidence consistent with that provided with the Department.

11. The Tribunal finds that Mr Kasonde applied for a student visa on 6 March 2015 and that the visa was granted on 13 March 2015. The Tribunal finds that Mr Kasonde did not refer to or claim the applicant to be a member of his family unit, either in the application or up until the time of decision of his student visa. The Tribunal accepts that the applicant became a member of the family unit of Mr Kasonde before Mr Kasonde applied for and was granted a student visa. The Tribunal finds the applicant was not included in Mr Kasonde’s application under r.2.07AF(3) or in information provided in relation to Mr Kasonde’s application under r.2.07AF(4). The Tribunal finds that Mr Kasonde did not inform the Minister, in writing, of the name, date of birth and citizenship of the applicant and the relationship between them prior to the grant of his visa.  

12. Accordingly, the Tribunal finds that the applicant does not satisfy cl.572.314 of Schedule 2.

13. There is no suggestion that the applicant meets any of the primary criteria for the grant of a student visa or the requirements of any other subclasses within the Student Class TU visa class.

    DECISION

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

    Gabrielle Cullen

    
    

    Member