Rajak (Migration)

[2023] AATA 138

Rajak (Migration) [2023] AATA 138 (18 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Soni Rajak

CASE NUMBER:  2203049

HOME AFFAIRS REFERENCE(S):          BCC2020/617431

MEMBER:Michael Biviano

DATE:18 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 18 January 2023 at 4:00 pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of the family unit – Subsequent Entrant – spouse not named in visa application – separate education consultants – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2 cl 500.311; rr 1.03, 1.12, 1.15, 2.07

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 14 February 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 February 2020. 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 applicant applied for a Student (Temporary) (Class TU) (Subclass 500) (Subsequent Entrant) visa as a member of the family unit of her spouse Rajesh Gautum, to join him in Australia. Mr Gautum held a Student (Subclass 500) visa, which was granted on 27 February 2020.

4. 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 (Cth) (the Regulations). Clause 500.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of the primary person and the applicant to have either:

   a.become a member of the family unit of the primary person before the grant of the student visa to the primary person and been included in the primary person’s application under reg 2.07AF(3) or in the information provided in relation to the primary person’s application under reg 2.07AF(4); or

   b.become a member of the family unit of the primary person after the grant of the student visa to the primary person and before the application was made.

5. The delegate found in this case that the applicant had become a member of the family unit of Rajesh Gautum (primary person), and that they had married on 30 January 2020, prior to the grant of the student visa to the primary person on 27 February 2020, but the applicant had not been referred to in the primary person’s application for a student visa. In such circumstances the applicant did not satisfy the requirements of cl 500.311 of Schedule 2 to the Regulations.

6. The applicant appeared before the Tribunal on 19 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Rajesh Gautum, the primary person.

7. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary, to enable the examiner to establish the relevant facts.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this review is whether 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 whether she was included in the primary person’s application for that visa and satisfies cl 500.311.

10. Clause 500.311 of Schedule 2 to the Regulations provides:

    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; and

    (ii)before the application was made.

11. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Regulations. Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

12. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:

    ·the spouse or de facto partner of the family head;

    ·a child or step-child of the family head or their spouse or de facto partner who is not engaged, or has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or their partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or their partner) because they are incapacitated for work due to loss of bodily or mental functions;

    ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild).

13. Regulation 2.07AF of the Regulations sets out the content of the information to be provided by the primary person to the Minister about the member of the family unit. Regulation 2.07AF provides:

    2.07AF Applications for Student (Temporary) (Class TU) visas

    (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.

14. In this instance, the applicant is claiming to be the spouse of the primary person.

15. A person is a ‘spouse’ if they are in a ‘married relationship’ with the family head. ‘Spouse’ is defined by s 5F of the Act, which provides that: the couple must be married to each other in a marriage that is valid under the Act; the couple must have a mutual commitment to a shared life as a married couple to the exclusion of all others; their relationship is genuine and continuing; and the couple live together or do not live separately and apart on a permanent basis. The definition applies to same sex and different sex couples.

16. When considering whether the above requirements in s 5F are satisfied and the applicant is the spouse of the family head, the Tribunal may consider any of the circumstances outlined in reg 1.15A of the Regulations. These circumstances are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.

    Nature of the relationship between the applicant and primary person

17. The applicant is a 39-year-old Nepalese national who first came to Australia in 2013 on a student visa for the purpose of undertaking studies in accounting in Australia.

18. The Decision Record of the delegate of the Department of Home Affairs dated 14 February 2022, which was provided to the Tribunal by the applicant, confirms that the applicant made the application for a Student (Temporary) (Class TU) (Subclass 500) (Subsequent Entrant) visa on 28 February 2020 (Decision Record). The Decision Record set out the reasons for the refusal.

19. Prior to the hearing in this matter the applicant filed a substantial number of supporting documents in support of the review application. The applicant filed with the Tribunal:

    a.Statement of Rajesh Gautum dated 3 July 2022 (Primary Statement);

    b.Grant of Student (Subclass 500) visa on 27 February 2020 to Rajesh Gautum, the primary person, which expired on 15 March 2022;

    c.Commonwealth of Australia Certificate of Marriage dated 30 January 2020;

    d.NSW Births, Deaths and Marriages – Marriage Certificate dated 8 February 2020;

    e.Statement of the applicant dated 3 July 2022 (Applicant Statement);

    f.Photographs of the marriage ceremony; and

    g.Residential Tenancy Agreement made 11 November 2021 naming the applicant, primary person and Sabal Khadka as tenants.

20. The Tribunal has considered that documentation together with the documents provided by the applicant to the delegate. The Tribunal has also considered the evidence given by the applicant and the primary person.

21. The Primary Statement outlines Mr Gautum’s position and explains his failure to include the applicant as a member of the family unit on his application for a student visa. The Primary Statement provided:

    Firstly, I would like to apologies for the innocent mistake that happened in complete unawareness. I got married to the love of my life, Soni on 30th of January 2020. I first met her in 2013 in McDonald’s Kings Cross where we both worked together. At first, we were just work colleagues however things really started to build up when we started working on our management training.

    We used to work together in McDonald Kings Cross. We were close as we started working together and did few of management trainings together. She was this jolly little girl at work who would get the things done but always with smile and dimple on her cheeks. She told me about her relationship and divorce and the suffering and mental agony she was going through because of it. I used to be with her in her hard times to listen to her feelings and comfort her and she used to tell me everything. In this series of confession sessions with her we did not realize when we fell for each other. I had just lodged my application for Student Visa and was on bridging visa. Later in December 2019, as we realized her Student Visa was about to expire and she did need to apply for visa again we started planning to lodge her visa as a subsequent entrant. As she had gone through a lot and wasn’t really having tough time and although how much she wanted to finish her degree she needed some time off from studies so she can pull herself together. We dreamt of a happy life together and got married with the celebrant on 30th of January and started the first step of the thousand-mile journey.

    After the ceremony, the celebrant informed us it will take a week for the paperwork to get through the Registry of Births, Deaths and Marriage. I was totally unaware of the regulation about informing the immigration immediately. We were waiting for the Marriage Certificate form the Office of Register and were also preparing other documentation required for the lodgment of her Visa. I got married to her in pure love and I would love to spend my days here in Australia with her support and want to care and support her in every steps of her life. Not notifying immigration office on time was an honest mistake and a result on misconception happened due to total unawareness and lack of knowledge about the regulations.

    We have been together supporting each other from the toughest time of life, helping each other to grow and achieve the dreams we have dreamt to spend the upcoming days with full rejoice and happiness.

    Recently, we moved from Sydney to Bathurst thinking the peace and calm in country will be a great environment to calm down and get away from the busy environment in Sydney. The whole purpose of this movement was to put the stress away from the past and plan for the coming days. However due to the delay in the Visa decision always left us with the uncertainty. We went through the pandemic with a lot of trauma and healing as well. Both of our families back home got seriously ill with the Covid-19. Soni wanted to go back home to visit her family and support them during this time and the constant fear of losing them and not being able to be there in times like these was very traumatizing itself. However, in this tough time we had each other supporting and comforting which gave us the strength to keep going and put ourselves together no matter how dire the situation was.

    She has always provided me with all the love and support she could in our time together ever since and we were able to go through the hardest times of life together with each other by our side.

    I would like to humbly request to consider the application of my wife. We have come a long way from so many things and dream of building our lives together. During this uncertain time refusal of her visa might push her even backwards on her mental health and our dreams might never be real. As a husband and wife, we would like to spend our times supporting each other and help each other grow. Without her I will also lose my support and strength as well. I humbly request you to consider our honest mistake and accept this letter as an apology for our mistake. I believe you will consider our appeal and grant my wife visa so that we could start our new lives together, reviving the moments and supporting each other for the prosperous future ahead of us.

22. The applicant in evidence claimed that:

    a.She arrived in Australia in 2013 on a student visa to study accounting. She was initially enrolled to undertake a Bachelor of Accounting but could not complete that course, but she did complete a Certificate IV in Accounting and a Diploma of Accounting.

    b.She was in Australia with her first husband, but that relationship broke down.

    c.She had worked with Rajesh Gautum, a student from Nepal, at McDonalds since 2017 and they became friends and he was very supportive of her circumstances during the relationship breakdown.

    d.She divorced her first husband on 2 July 2019.

    e.In September 2019 Rajesh Gautum asked her to marry him and she agreed, and they became engaged.

    f.On 30 January 2020 they were married in a ceremony. The wedding coincided with the application made by Rajesh Gautum on 2 November 2019 for a student visa.

23. Importantly reg 2.07AF(4) imposed an obligation upon the primary person to inform the Minister in writing if a person becomes a member of their family unit after the application but before the decision was made, and provide the name, details and relationship of the person who has become a member of the family unit.

24. Accordingly the effect of cl 500.311(a) is that a visa will only be granted where an applicant becomes a member of the family unit of the primary person before the grant of the visa to the primary person where:

    a.the primary person has included the applicant in the visa application as a member of the family unit per reg 2.07AF(3), or

    b.if the applicant becomes a member of the family unit of the primary person after the application is made but before the grant of the visa to the primary person, provided information in writing to the Minister about the applicant.

    Analysis of evidence

25. Based on the documents provided to the Tribunal and on the evidence of both the applicant and Rajesh Gautum, the Tribunal finds that:-

    a.the applicant and Rajesh Gautum were married on 30 January 2020 and their relationship is genuine; and

    b.Rajesh Gautum’s visa application was granted on 27 February 2020;

    c.the applicant became a member of the family unit of Rajesh Gautum before the grant of the visa.

26. The Decision Record confirms that the primary person did not include the applicant as a member of his family unit on his visa application. That finding is supported by the Primary Statement and the Applicant Statement confirming the omission and the applicant’s statutory declaration made 1 June 2020 and provided to the delegate where the applicant stated:

    It was our innocent mistake not to notify Department of our marriage during the time of processing of my husband’s student visa application. We are a genuine couple and did not have any intention to hide our relationship status. It was our innocent mistake.

27. The applicant and primary person both in evidence confirmed that the primary person had omitted to include the applicant. They claimed that it was their intention to get married and once married to apply to have the applicant added as a dependent to the primary person’s visa. The applicant and primary person each had separate education consultants advising them about their visa application and they were not advised or aware of the obligation to inform the Department of the applicant getting married to the primary person and the requirements of cl 500.311.

28. While the Tribunal is sympathetic to the applicant and primary person’s circumstances and accepts their evidence it was an honest mistake, the operation of cl 500.311 and reg 2.07AF, plays an important role in encouraging the primary person to make full and proper disclosure to the Department and to identify members of the family unit who may join him in Australia, which is relevant information in considering whether the primary person is a genuine temporary entrant.

29. Based on the evidence before it, the Tribunal accepts that the primary person did not include the applicant as a member of the family unit in his application at the time of making the application or before the grant of the visa after they were married.

    Findings

30. The Tribunal finds as discussed above that the applicant and the primary person were married at the time the primary person was granted a student visa and the applicant was not named as a member of the family unit of the primary person in the primary person’s student visa application, and he did not inform the Department of the relationship in writing after the application was made but before the grant of visa.

31. Accordingly, the Tribunal finds that the applicant became a member of the family unit of the primary person prior to the grant of the student visa. Therefore the applicant must satisfy cl 500.311(a) and cl 500.311(b) is not applicable to this application.

32. Further, the Tribunal finds that the applicant was not included in the application for the student visa made by the primary person and information was not provided subsequent to the application as set out in regs 2.07AF(3) and 2.07AF(4) of the Regulations and as required by cl 500.311. The applicant did not meet the requirements of cl 500.311.

33. Accordingly, the applicant is the spouse of the primary person who is the family head, but the applicant does not meet cl 500.311 for the grant of a Subsequent Entrant student visa.

    DECISION

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

   Michael Biviano
   Member

   Attachment – Migration Regulations 1994 (Cth)

   1.12     Member of the family unit

   Scope

   (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

   General rule

   (2)A person is a member of the family unit of another person (the family head) if the person:

   (a)     is a spouse or de facto partner of the family head; or

   (b)     is a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

   (i)has not turned 18; or

   (ii)has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or

   (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

   (c)      is a dependent child of a person who meets the conditions in paragraph (b).

   This subregulation has effect subject to the later subregulations of this regulation.

   …