Menina (Migration) - [2022] AATA 1031

Menina (Migration) [2022] AATA 1031 (30 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Arnold Jeff Menina
REPRESENTATIVE:  Miss Monique Mazzarolo
CASE NUMBER:  2115235
HOME AFFAIRS REFERENCE(S):          BCC2020/574066
MEMBER:T. Quinn
DATE OF ORAL DECISION:  30 March 2022
DATE OF WRITTEN STATEMENT:         6 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 06 April 2022 at 10:10am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – member of the family unit – subsequent entrant – secondary applicant joined the family prior to the visa grant – not included in visa application – migration agent’s oversight – common law principles of agency – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 338, 347, 359, 360
Migration Regulations 1994, rr 1.12, 2.07; Schedule 2, cls 500.311
CASES
Huang v MIAC [2011] FMCA 271
MIAC v Le (2007) 242 ALR 455
Sran v MIBP [2014] FCCA 37
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 18 October 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).
The applicant (‘the applicant’) applied for the visa on 25 February 2020 as a Subsequent Entrant and as a member of the family to join his partner, Kyrin Marie Doyohim (hereinafter referred to as ‘Ms Doyohim’) who holds a TU-500 Student Visa (‘the application’). At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). Ms Doyohim was the primary applicant for a Subclass 500 (Student) visa to undertake study in Australia and neither the applicant nor Ms Doyohim claims to meet the criteria for a Subclass 590 (Student Guardian) visa.
On 18 October 2021, the delegate refused to grant the applicant the visa on the basis that the applicant did not satisfy the requirements of clause 500.311(a)(i) of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that he became a member of Ms Doyohim’s family prior to the grant of her student visa but was not included in the primary visa applicant’s (Ms Doyohim’s) application. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
On 28 October 2021, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.
The applicant and his partner, Ms Doyohim appeared before the Tribunal via telephone hearing on 30 March 2022 to give evidence and present arguments.
The applicant was assisted in relation to the review and their representative, Ms Mazzarolo, also attended the hearing on 30 March 2022.
The Tribunal gave its decision on the review at the conclusion of the hearing held on 30 March 2022. The following…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Menina (Migration) [2022] AATA 1031
Case: [2022] AATA 1031
Decision Date: 30 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Student (Temporary) (Class TU) visa, Subclass 500. The applicant was a secondary applicant who joined the primary applicant's family unit after the initial visa application was lodged but before the visa was granted. The applicant was not included in the original visa application due to an oversight by the migration agent.

The central legal issue before the Tribunal was whether the applicant, as a subsequent entrant who joined the family unit after the application was made and was not included in that application, could be considered a member of the family unit for the purposes of the visa application. The Tribunal was required to determine if the applicant met the criteria for a Subclass 500 visa, specifically clause 500.311(a)(i) of Schedule 2 to the Regulations.

The Tribunal found that the applicant did not satisfy the requirements of clause 500.311(a)(i). While acknowledging the common law principles of agency and the migration agent's oversight, the Tribunal concluded that these factors did not alter the applicant's status in relation to the visa application as it stood at the time of decision. The Tribunal did not consider the applicant to meet the criteria for a Subclass 590 (Student Guardian) visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa, Subclass 500.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the above findings, the Tribunal is not satisfied that the applicant meets the requirements of clause 500.311(a)(i) of Schedule 2 to the Regulations. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.T. QuinnMember

Ratio Decidendi

Legal Principle Established

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