Patel (Migration)

[2019] AATA 158

Patel (Migration) [2019] AATA 158 (24 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Chandni Satishkumar Patel

CASE NUMBER:  1805616

HOME AFFAIRS REFERENCE(S):           BCC2017/4282806

MEMBER:M. Edgoose

DATE:24 January 2019

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 24 January 2019 at 1:34pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – secondary applicant – not included in husband’s application – attempts to be added as a dependent spouse – relied on agent’s advice – decision under review affirmed 

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.07AF Schedule 2 cl 500.311

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 Home Affairs on 12 February 2018 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 15 November 2017. 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.500.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was a member of the family unit of the primary person prior to the grant of her student visa, but was not included as a family unit member in that application. Accordingly the applicant did not satisfy cl.500.311.

4. The applicant appeared before the Tribunal on 21 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, the primary person.

5. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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. The issue in the present case is whether the applicant satisfies the requirements of 500.311 in Schedule 2 of the Regulations:

   500.311

   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;

   (ii)and before the application was made.

8. Regulation 2.07AF requires the following:

   (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.

9. The applicant informed the Tribunal that her husband, the primary person, applied for his student visa on 26 August 2016. The student visa was granted on 27 July 2017. The primary person did not include his wife on the application.

10. The applicant and her husband, the primary person, married on 14 February 2017 (AAT Folio 43). The Tribunal accepts that as of 14 February 2017 the applicant became a member of the family unit.

11. The Tribunal asked the applicant if she had become a member of the family unit of the primary person before the grant of the primary person’s student visa. The applicant responded yes. The Tribunal accepts the applicant’s response.

12. The Tribunal subsequently asked the applicant did the relationship commence before the primary person (the applicant’s husband) applied before the student visa. The applicant responded yes. The Tribunal accepts the applicant’s response.

13. The Tribunal asked the applicant if her details were included in the primary person’s (the applicant’s husband) student visa application. The applicant responded no. In these circumstances r.2.07AF(4) is not satisfied as the primary person’s student visa application did not include the name, date of birth, citizenship and relationship between the primary person and the applicant. As the applicant was not included in the primary person’s visa application, the applicant does not satisfy cl.500.311.

14. The applicant further stated to the Tribunal that it was not her fault her details had not been added to the primary person’s visa application but that of their previous agent and a breakdown in communication. The applicant stated that she had made contact on a number of occasions to have their relationship status updated. The Tribunal has had regard to a letter the applicant submitted to the Tribunal (AAT Folio 32) where she mentioned that after she and the primary applicant were married on 14 February 2017 “we went to our agent to meet physically in order to apply for dependent visa for myself but our agent guided us that I cannot be added as a dependent till my husband gets his student visa for when he applied on 26 August 2016”. The primary person’s student visa was granted on 27 July 2017 and the applicant ‘submitted my visa file as his dependent and I was given a rejection based on the thing that my husband didn’t declare the status in his visa file’ (application). The Tribunal accepts that it would appear the applicant has made a number of attempts prior to the granting of the primary person’s visa to be added as a dependent through their registered migration agent.

15. The applicant’s husband (the primary person) stated to the Tribunal that he is now on a new student visa which is due to expire at the end of 2019 and that he was advised not to include his wife on that visa application by the above agent. The Tribunal accepts the primary person’s evidence.

16. 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

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

    M. Edgoose
    Member