Rakthongchan (Migration)

[2019] AATA 133

Rakthongchan (Migration) [2019] AATA 133 (21 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anan Rakthongchan

CASE NUMBER:  1809026

HOME AFFAIRS REFERENCE(S):           BCC2017/4766135

MEMBER:Stephen Witts

DATE:21 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.311 of Schedule 2 to the Regulations.

Statement made on 21 January 2019 at 12:18pm

CATCHWORDS

MIGRATION –Student (Temporary) (Class TU) – Subclass 500 (Student) –member of the same family unit –  secondary applicant not included in primary visa holder’s application – de facto relationship – evidence of relationship provided to Tribunal – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), 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 13 March 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 13 December 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. In this matter the primary person is the associated student visa holder, ARADA SEANGLERT who lodged her current Student (class TU subclass 500) visa on 17 June 2017 as the primary applicant and declared at that time her relationship status to ‘never married/de facto. The applicant did not include in the application any dependent applicants as members of her family unit. This student visa application was approved on 14 July 2017 and is valid until 11 July 2020.

5. The applicant ANAN RAKTHONGCHAN, applied to be added as a dependent to ARADA SEANGLERT’s class TU subclass 500 visa on 13 December 2017. At time of lodgement the applicant declared that they were in a de facto relationship, however no evidence was provided. As the applicant was not a member of the family unit of ARADA SEANGLERT’s family unit at the time of their application and was not declared as required by Regulation 2.07AF the applicant did not satisfy cl.500.311.

6. The applicant appeared before the Tribunal on 21 January 2019 to give evidence and present arguments.

7. The Tribunal also received oral evidence from the applicant’s de facto partner Arada Seangleart, and also from Mr Connor Murphy and Mr Paul Marini (by phone).

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 cccl.500.311 in Schedule 2 of the Migration Regulations.

    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 sub- regulation 2.07AF(3); or

    (ii)       information provided in relation to the primary person’s application under sub- regulation 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.

12. When asked by the Tribunal to provide evidence in regard to his application the applicant stated that he was aware that his details were not included in the primary person’s student visa application.

13. The applicant’s de facto partner gave evidence that their de facto relationship began on 17 July 2017 three days after the date of the granting of her student visa. The applicant’s de facto partner stated that the de facto nature of their relationship did not begin until several days after her student visa application was granted. She stated that once she had made this application that she held discussions with the applicant and that they decided that they would now be in a de facto relationship.

14. The applicant also provided evidence of an application for relationship certificate dated 16 January 2019 with the Department of Justice Registry of Births, Deaths and Marriages.

15. The applicant also provided evidence of housing and lease arrangements and bank account details that demonstrated that the applicants were in a de facto relationship and that that de facto relationship began on 17 July 2017.

16. The applicant also provided a number of other materials that indicated that the applicant and the primary person were in a de facto relationship and were currently living together.

17. The applicant also provided a number of statutory declarations by supporting witnesses corroborating the nature of the applicant’s relationship with the primary person.

18. Two witnesses, Mr Connor Murphy and Mr Paul Marini also provided evidence as to the nature and status of the applicant’s and the primary person’s de facto relationship.

19. Accordingly, the Tribunal is satisfied that the applicant meets cl.500.311

20. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

21. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.311 of Schedule 2 to the Regulations.

    Stephen Witts
    Member