Ortiz Amaya (Migration)

[2018] AATA 2965

Ortiz Amaya (Migration) [2018] AATA 2965 (30 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hernan Fernando Ortiz Amaya

CASE NUMBER:  1620198

HOME AFFAIRS REFERENCE(S):           bcc2016/2814463

MEMBER:Wendy Banfield

DATE:30 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 30 June 2018 at 1:15pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 – No compelling or compassionate circumstances – Secondary applicant of wife’s student visa – Did not meet criteria – Previous cancellation of student visa – No circumstances affecting interests of Australia, Australian citizen, permanent resident or eligible New Zealand citizen – No justification to grant visa within 3 years of cancellation

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, Public Interest Criteria 4013, cl 500.317

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 10 November 2016 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 25 August 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.317 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not meet Public Interest Criteria 4013 and there were no compelling or compassionate circumstances.

   Background

4. The applicant is a citizen of Columbia and is 33 years old. He previously held a student visa that was cancelled due to a failure to comply with visa conditions. The applicant had then applied to be a secondary applicant on his wife’s student visa but this was refused in his case. The applicant only has his wife in Australia who is a citizen of Thailand and they have a child together.

5. The applicant appeared before the Tribunal on 30 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted with the assistance of interpreters in the Spanish, Thai and English languages.

   Evidence of the visa applicant

6. The applicant came to Australia in October 2012 from Columbia. He said he wanted to come to another place to study English. He also had wanted to become a chef but said it did not work out and he had to withdraw because the education system he came from is very different to Australia. Since he has been in Australia he said he has only studied English. The applicant’s wife had been studying childcare and applied for a new student visa as she wanted to study English again.

7. The applicant said his wife’s visa was approved while his, as a secondary applicant was not. According to the applicant, his agent had told him he did not meet the criteria. The applicant disputed this and said he had only not studied for two months. The applicant confirmed his visa cancellation took place before he applied for a visa as a secondary applicant. The applicant said he was no longer studying as he was waiting for approval of a new visa and he had been advised he did not have to.

8. The applicant was advised that because he did not meet the relevant criteria, the Tribunal needed to consider whether there were compelling circumstances affecting the interests of Australia or compelling or compassionate circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen. The applicant said he did not understand so the Tribunal explained that because he had a visa cancelled, at the relevant time he did not meet the criteria to be granted a further visa. However, those criteria could be waived if there are compelling or compassionate reasons. The Tribunal asked the applicant about the status of the couple’s baby and he said she has the same status as the parents and they are not citizens or residents of Australia.

9. The applicant was then invited to make submissions regarding compelling or compassionate circumstances in his case. The applicant said he does not have Australian family members, only friends. The applicant said he and his wife wanted to see what jobs are in demand and then they would like to find a sponsor. However, the applicant said he and his wife had discussed going back to Thailand if they have to.

   Evidence of the witness

10. The witness is the wife of the applicant. She said she and the applicant had applied for a student visa because they now have a baby and required more time. She was invited to provide any evidence regarding compelling or compassionate reasons as set out in the Migration Regulations. The witness said her husband’s student visa had been cancelled because of a drink driving offence but that he has had no further issues and has since proven himself.

11. Regarding long term plans, the witness said she and the applicant hoped to stay in Australia while she holds a student visa that is valid until 2019. Then she is planning to apply for another student visa for three years to finish her studies and go back to her own country. The witness said she is currently studying Management.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

14. The applicant is a member of the family unit of his wife who was granted a student visa. As such he was included as a secondary applicant; however, the application was refused in his case. The issue in the present case is whether there are compelling or compassionate reasons in the applicant’s case for waiving the requirements of PIC 4013.

15. Part 500.3 of the Migration Regulations sets out the criteria relevant to secondary applicants. It includes the following:

    500.317

    (1) The applicant satisfies Public Interest Criterion 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.

    4013

    (1) If the applicant is affected by a risk factor mentioned in subclause (1A) (2) (2A) (3) (4) (5)

    (a) the application is made more than 3 years after cancellation of the visa, or temporary entry permit or determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or

    (b) the Minster is satisfied that in the particular case:

    (i) compelling circumstances affecting the interests of Australia; or

    (ii) compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen;

    justify the granting of the visa within 3 years after the cancellation or determination.

16. Subclause 4013(2) states:

    (2) A person is affected by a risk factor if a visa previously held by the person was cancelled under Section 116 or 128 of the Act;

    (a) because the person was found by Immigration to have worked without authority; or

    (b) if the visa was of a subclass specified in Part 2 of this Schedule – because the person did not comply with a condition specified in that Part in relation to that subclass; or

    (c) if the visa was a subclass 773 (Border) visa and, at the time of grant of the visa, the person was apparently eligible for a substantive visa of a subclass specified in Part 2 of this Schedule – because the person did not comply with a condition specified in that part in relation to that subclass of substantive visa; or

    (ca) because the person held a student visa and the Minister was satisfied that a ground mentioned in paragraph 116(1)(fa) of the Act applied to the person; or

    (d) because the Minister was satisfied that a ground prescribed by paragraph 2.43(1)(ea), (i), (ia), (j), (k), (ka), (kb), (m) or (o) applied to the person.

17. The applicant had previously held a student visa which was cancelled. He then applied as a dependent on his wife’s visa. Although the applicant’s wife was granted a student visa to continue her studies in Australia until 2019, the applicant has been refused as a secondary applicant because he did not satisfy Public Interest Criteria 4013.

18. The reason the applicant did not meet this criteria was because the application was not made more than 3 years after cancellation of his visa, and there are no compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen that would justify the granting of the visa within 3 years of the cancellation.

19. The applicant’s wife declared that although the applicant had previously been convicted of drink driving, he had since learnt from that and changed. As this circumstance does not affect the interests of Australia, or an Australian citizen, permanent resident or eligible New Zealand citizen, unfortunately it cannot be considered a reason for not applying PIC 4013. The applicant was not able to provide any compelling or compassionate circumstances that could be considered as reasons for waiving the public interest criteria in this case.

20. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.317.

21. 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.

    DECISION

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

    Wendy Banfield
    Member