Raksafoongchon (Migration)

[2023] AATA 1211

Raksafoongchon (Migration) [2023] AATA 1211 (1 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thitinan Raksafoongchon

REPRESENTATIVE:  Mr Shadesh Barua (MARN: 0602197)

CASE NUMBER:  2208413

HOME AFFAIRS REFERENCE(S):          BCC2020/2298385

MEMBER:T. Quinn

DATE:1 May 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 01 May 2023 at 11:22am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of the family – student visa holder – no enrolment in a course of study – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 359, 338, 347
Migration Regulations 1994, Schedule 2 cls 5000.211, 500.311, 500.312; r 2.07

CASES

Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 14 September 2020, the applicant applied for a Student visa (the visa) as a Subsequent Entrant and as a member of the family of her then partner (‘the application’).[1]

   [1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).  At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant’s partner was the primary applicant and neither the applicant nor her partner claimed to meet the criteria for a Subclass 590 (Student Guardian) visa.

2. On 3 June 2022, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant was not the member of a family unit of a person who holds a student visa.[2]

   [2]See clause 500.311 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application

3. On 9 February 2022, the applicant applied to this Tribunal for a review of the delegate’s decision.[3]

   [3] Pursuant to sections 338(2) and 347 of the Act.

4. On 14 March 2023, the Tribunal sent the applicant a letter pursuant to section 359A of the Act inviting her to comment on information contained in the Department of Home Affairs’ records that indicated the primary visa applicant did not hold a student visa and therefore the applicant did not meet clause 500.311 of the Regulations.

5. The applicant responded to this letter on 27 March 2023 and has filed more submissions since that time, all of which have been considered. 

6. The applicant appeared before the Tribunal to give evidence and present arguments at a telephone hearing on 1 May 2023.  Her new partner, Mr Vitaliy Belskiy also gave evidence before the Tribunal.  The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages, although the applicant requested to proceed in English at the outset of the hearing.  The interpreter remained on the line and available throughout the hearing.  The applicant was assisted in relation to the review, but their agent did not attend the hearing on 1 May 2023.

7. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. A 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.

8. For the following reasons, the decision is affirmed.  In reaching my conclusions, I have had regard to:

   a.the oral evidence given at the hearing;

   b.all submissions and written material filed by or on behalf of the applicant; and

   c.other relevant documents on the Tribunal and Department files.

   Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in my reasons as set out below. The reasons incorporate reference only to that information that I have found to be fundamental or materially significant to the determination of the issues in the case.[4]

   [4]In this regard, please see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 (24 February 2020) at [82] and [96].

   STATUTORY FRAMEWORK

9. 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’

10. 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.

11. Clause 500.311 relevantly requires that, at the time of decision, the applicant be a family member of the family unit of a person who holds a student visa and therefore the applicant’s application must be founded on evidence that she remains in a relationship with the primary visa applicant and that that primary visa applicant holds a student visa.[5] 

    [5]Clause 500.312 of Schedule 2 to the Regulations.

    Significance of Primary Visa Holder Criterion

12. Producing evidence that the primary visa holder holds a current student visa and that a secondary applicant remains a member of that family unit is a critical first step towards obtaining a subsequent entrant student visa. The Tribunal must therefore be presented with evidence that shows the primary visa holder currently holds a student visa and that the secondary applicant continues to be in a relationship with the primary visa holder. Absent such evidence, a subsequent entrant student visa cannot sensibly be grated. Indeed, in any case for a subsequent entrant student visa, consideration of whether all other primary criteria are met, as contained in clauses 500.311-500.318 of the Regulations, is premised on the primary visa holder holding a student visa and the family member criteria in clause 500.311 first being satisfied. If these criteria are not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

    THE HEARING

13. The applicant has filed submissions and given evidence at hearing about her history including her relationship with her ex-boyfriend (who was the primary visa applicant upon which her secondary application was based).  I have deep empathy for the challenges the applicant has faced and acknowledge that she supported her ex-boyfriend, and this support was not reciprocated.

14. The applicant indicated in submissions and at hearing that she wishes to continue her study in Australia but gave evidence at hearing that she is not enrolled in a course of study and therefore she cannot be found to satisfy clause 500.211 of the Regulations.

15. I have carefully considered all material, evidence and submissions before me.

16. The applicant does not satisfy the requirements of clause 500.311 as she is not the family member of a person who holds a student visa.

CONCLUSIONS

1. Given the above findings, the Tribunal is not satisfied that the applicant meets the requirements of clause 500.311 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

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

   T. Quinn

   Member