NG (Migration)

[2018] AATA 4700

NG (Migration) [2018] AATA 4700 (17 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tjhiap Seng NG

CASE NUMBER:  1611895

DIBP REFERENCE(S):  BCC2016/2208238

MEMBER:Tim Connellan

DATE:17 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies cl.572.314..

Statement made on 18 October 2018 at 11:59am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – member of the same family unit – applicant not declared on visa application form – error on form – marriage certificate on Department’s file – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.07AF 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 on 13 July 2016 to refuse to grant the visa applicant, Mr Tjhiap Seng Ng a Student (Temporary) (Class TU) Subclass 572 visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Ng applied for the visa on 28 June 2016. The delegate refused to grant the visa on the basis that he applied for the visa to join his wife Ms Chee who was studying in Australia on a visa she had been granted on 28 January 2016.

3. While Mr Ng provided evidence he and Ms Chee had been married in 2002 and had remained a married couple since that time, Ms Chee had not declared him as a member of her family unit in her application which she lodged on 25 September 2015.

4. The delegate therefore found he failed to satisfy clause 572.314 and refused his application.

5. Mr Ng appealed the decision for review by this Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal received a written submission which included evidence that Mr Ng and Ms Chee were married on 21 May 2002.

7. The submission stated that in her application, which she had completed without assistance and lodged on 25 September 2015 she had declared her relationship status as “Married”. There was no intention not to provide details of her husband however it claimed there was no provision on the application form to provide such information.

8. The Tribunal made enquiries of the Department including a request for provision of Ms Chee’s application form lodged 25 September 2015.

9. The department provided a copy of that application, which shows that Ms Chee listed her status as married, and declared she had not received any assistance from any person in completing the form.

10. The application form shows no request or provision to provide evidence of family members, accompanying or otherwise.

11. The Tribunal engaged in email correspondence with the Department about this matter and in their final correspondence, the Department stated, attached is a sample copy of an application with a dependent lodged around the same time. The application gives the client the option of completing details of all migrating and non-migrating family members and in this instance it appears that the client has chosen not to provide these details.

12. While the Tribunal accepts that the application form provided by the Department may well have been an application form from ‘around the same time’ as Ms Chee lodged her application, the fact remains that Ms Chee’s application form provided by the Department does not have provision for her to have included details of her husband.

13. While the Tribunal is conscious of regulation 2.07 AF and the requirement that a person who seeks to satisfy the primary criteria (the primary applicant) must include:

    ·     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

    ·     the relationship between the person and the primary applicant,

    The Tribunal is of the view that for this requirement to be equitable, the application form to be completed by someone without professional assistance, must clearly provide for provision of the required information.

14. Evidence on the Department file indicates that in support of her visa application, Ms Chee provided a copy of her marriage certificate to Mr Ng.

15. The Marriage Certificate contains the required information of her husband Mr Ng that satisfies Reg. 2.07AF and the Tribunal therefore finds that Mr Ng satisfies cl 572.314.

16. After considering the available evidence, the Tribunal found that pursuant to section 360(2)(a) of the Act, it should decide the review in the applicant’s favour. Therefore no hearing was required.

17. Consequently, the Tribunal will remit the matter for reconsideration.

    DECISION

18. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies cl.572.314.

    Tim Connellan
    Member