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 are the reasons for that decision.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed in this case. In reaching its decision, the Tribunal has had regard to:
a.the oral evidence given by the applicant and Ms Doyohim at the hearing;
b.Ms Mazzarolo’s written and oral submissions;
c.all written material filed by or on behalf of the Applicant; and
d.other relevant documents on the Tribunal and Department files.
The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to the information that the Tribunal has found to be fundamentally or materially significant to the determination of the issues in the case.
STATUTORY FRAMEWORK
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 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 satisfies the secondary criteria.
Clause 500.311: ‘member of the family unit of a person who holds a student visa’
Clause 500.311 requires as follows:
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.
Subregulation 2.07AF provides as follows:
(1)This regulation applies in respect of an application for a Student (Temporary) (Class TU) visa.
(2)Despite anything in regulation 2.07, an application may be made on behalf of an applicant.
(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 the application; and
(b)   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.
(5)Subregulations (3) and (4) apply:
(a)   whether or not the member of the family unit is an applicant for a Student (Temporary) (Class TU) visa; and
(b)   if the member of the family unit is not an applicant for a Student (Temporary) (Class TU) visa--whether or not the member of the family unit intends to become an applicant for a Student (Temporary) (Class TU) visa.
Note:          member of the family unit of an applicant for a Student (Temporary) (Class TU) visa is defined in subregulation 1.12(6).
Clause 500.311 relevantly requires that any applicant who became a family member of the family unit of a person who holds a student visa before the grant of the student visa to that primary person must have been included in the primary person’s application or information provided in relation to the primary person’s application under subregulation 2.07AF.
Significance of 500.311(a) Criterion
Where a subsequent entrant was a member of the primary applicant’s family at the time that the latter applied for their student visa, producing evidence that the applicant was included in the primary visa holder’s application for a student visa is a critical first step towards obtaining a subsequent entrant student visa. The Tribunal must therefore be presented with evidence that shows the applicant was included in the primary visa holder’s application for their student visa. Absent such evidence, a subsequent entrant student visa cannot be grated.
THE HEARING
The Tribunal has received evidence of the applicant and Ms Doyohim’s relationship and finds that the applicant is a member of Ms Doyohim’s family and has been for some time and at least since early 2018 when they began cohabiting. This is not in issue and the applicant and Ms Doyohim’s evidence and submissions are consistent with and acknowledge this.
Ms Doyohim gave evidence at hearing that she provided all documents to her previous migration agent in Malaysia but that her agent did not include the applicant on Ms Doyohim’s student visa application which was lodged on 7 November 2019. Ms Doyohim gave evidence and has field submissions that she was not aware of this error until after her student visa was granted 9 December 2019.
There is a nomination of student dependant form on the Department file which was filed 25 February 2020 but which was signed by Ms Doyohim on 12 December 2019 nominating the applicant as her dependent. Unfortunately, however, this post-dates Ms Doyohim’s visa grant and so still does not satisfy the strict requirements of clause 500.311.
On 31 March 2022, the applicant filed Ms Doyohim’s family composition document dated 5 November 2019 listing him as a member of her family. The Tribunal considers it likely that this document was sent to the applicant’s previous migration agent and the agent made an error when completing Ms Doyohim’s application form on 7 November 2019 although it makes no firm findings in this regard as the family composition document does not appear to have been put at the Department level – or at any time prior to 31 March 2022- in this case.
The applicant has filed submissions indicating that the migration agent Ms Doyohim engaged for her student visa application had indicated to Ms Doyohim that it was a registered migration agent but she has since become aware that they are not registered with MARA.[1] The Triubnal enquired at hearing as to whether Ms Doyohim had made a formal complaint in relation to her previous migration agent and she indicated that she had not because her student visa application was unsuccessful and the migration agent had apologised for the error they made. The Tribunal appreciates the forthright nature with which the applicant and Ms Doyohim gave evidence at hearing.
[1]See submissions of 29 March 2022.
The applicant has filed copies of text message communication between Ms Doyohim and her previous migration agent making it clear that the failure to declare the applicant on Ms Doyohim’s application was due to the migration agent’s oversight, not any conduct on Ms Doyohim or the applicant.[2] The Tribunal considers this should be taken into account in any future visa applications made by the applicant and Ms Doyohim and that this present refusal decision should not have any negative bearing on future migration outcomes for these individuals in the circumstances.
[2]See submissions of 4 April 2022.
In this regard, the Tribunal notes that Ms Doyohim is now enrolled in a Bachelor of Nursing with course dates from February 2022-December 2024, a Higher Education course that would involve considerable time, effort and expense. The Tribunal notes the significance the right to work in relation to the applicant would have for Ms Doyohim in pursuing her studies onshore. Ms Doyohim’s student visa granted in December 2019 is due to expire in May of this year and the Tribunal considers the evidence before it is favourable in relation to a future multiple applicant application for a student visa.
The applicant has filed a number of documents including evidence and detailed, thorough submissions. The Tribunal appreciates the time and effort put in by the applicant, his partner and migration agent and has read and considered all of these documents. However, the Tribunal does not have any discretionary powers to waive the requirements of clause 500.311 or subregulation 2.07AF.
The Tribunal empathises with the applicant and Ms Doyohim who are clearly family members and who have been ill served in relation to Ms Doyohim’s application in November 2019. This is very unfortunate. However, regardless of whether the applicant would later become a secondary applicant, Ms Doyohim was required to disclose all family member’s details pursuant to subregulation 2.07AF. Ms Doyohim’s relationship with her previous agent was one of agency at common law whereby an agent is given authority to act on behalf of the principal (Ms Doyohim) in relation to a third party (the Department or Tribunal) in a way that binds the principal. Such authority is found to have been conferred without the need for written documents and can even be implied.[3] Third parties, including the Department and the Tribunal, are entitled to assume that an agent has implied usual authority unless they know to the contrary. Applying the common law principles of agency, where an agent is acting on behalf of an applicant in relation to an application, the actions of the agent, such as the lodgement of the application form, may be taken to be the actions of the applicant, unless the agent in fact lacks authority to act in the particular way.[4] The Department is entitled to assume that an agent has the requisite authority to do things on behalf of an applicant in the ordinary conduct of an application, unless it knows the agent does not.
[3]See, for example, Huang v MIAC [2011] FMCA 271 where the Court observed at [17] that there may be circumstances where particular aspects of an agent’s authority are not the subject of express discussion at the time of the appointment, but are found to be implied from the purpose and nature of the agency and the circumstances surrounding the appointment. Where the appointment of the agent to achieve an intended objective is undoubted, it will be appropriate to make the necessary implications which would give practical effectiveness to the intended agency relationship. In that case, the Court applied principles of contract law to determine whether the applicant’s agent had implied actual authority to nominate himself as authorised recipient when completing the applicant’s visa application. The Court found at [19] that the circumstances required the implication that it was within the scope of the agent’s authority to nominate himself as authorised recipient.
[4]See, for example, MIAC v Le (2007) 242 ALR 455 where the interpreter was required to leave before all of the applicants’ witnesses had been heard. The Tribunal advised the applicants’ agent in the absence of the interpreter that he could either request a further hearing before he left that day or following receipt of the detailed s 359A letter that it would be sending to him. The agent responded that he did not feel a further hearing would be necessary. No further request for a hearing was made and no further hearing was held. The Federal Court overturned the reasoning of the Federal Magistrates Court at first instance, which had held that the Tribunal had inappropriately sought to transfer its obligations under section 360 to the applicant’s agent. Kenny J was not satisfied that the applicant’s agent did not convey the offer of hearing to the applicant, or had acted negligently.
A decision will not be vitiated where the conduct does not affect the Department or Tribunal’s exercise of jurisdiction and its obligations under the Migration Act, the applicant is complicit in the migration agent or Australian legal practitioner’s fraudulent conduct, or the conduct is merely negligent. In Sran v MIBP, the Court found that an agency agreement for the purpose of lodging a visa application was established, in circumstances where the applicant instructed the agent to make an application on his behalf, a fee was discussed, and the applicant was aware the application was to be made.[5] The Court further found that the applicant’s indifference to the detail of the application was such as to make the scope of the authority broad enough to include the provision of false or misleading information to the Department in relation to the applicant’s skills assessment. As such, the validity of the visa application was found not to be vitiated by the agent’s conduct.
[5]Sran v MIBP [2014] FCCA 37.
In this particular case, the Tribunal accepts that Ms Doyohim’s previous agent acted outside of their authority and their conduct was negligent. The Tribunal also notes Ms Doyohim’s evidence that she requested information about what was put in her application but was not provided with same and so was not indifferent to the detail of the application that had been lodged. However, a decision is not to be vitiated where conduct is merely negligent. The Tribunal considers the previous agent’s conduct was an unintended oversight which they have demonstrated remorse in relation to. As Ms Doyohim noted in her own evidence, her substantive application was successful and she currently holds a student visa. A relationship of agency existed between Ms Doyohim and her previous agent such that she is bound by their negligence in relation to their failure to include the applicant in her student visa application of November 2019. That oversight is taken to have been Ms Doyohim’s oversight in the circumstances of an agency relationship.
In circumstances where Ms Doyohim has not made any formal complaint in relation to her previous agent, the Tribuanl does not consider it can conclude that the agent’s oversights can be construed in such a way that the applicant can be found to meet clause 500.311
The applicant was unable to produce evidence that Ms Doyohim included him in her application of November 2019 such that he can satisfy the essential requirements of clause 500.311 and subregulation 2.07AF.
In the circumstances, the applicant does not meet the criteria under clause 500.311.
The applicant does not meet the regulatory requirements for the grant of a subsequent entrant student visa because there is no evidence satisfying the criteria that the applicant was included in Ms Doyohim’s application as set out in and required by clause 500.311(a)(i) of the Regulations.
CONCLUSIONS
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. Quinn
Member