Rodriguez Morales (Migration)

[2017] AATA 265

Rodriguez Morales (Migration) [2017] AATA 265 (14 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Julian Eduardo Rodriguez Morales

CASE NUMBER:  1609026

DIBP REFERENCE(S):  BCC2015/3496008

MEMBER:Penelope Hunter

DATE:14 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 14 February 2017 at 3:05pm

CATCHWORDS

Student (Temporary) (Class TU) visa – Subclass 570 Independent ELICOS Sector – cl 570.314 – Primary applicant failed to declare defacto spouse – Applicants married after visa application – No provision for de facto relationships in Colombia – Unhelpful migration advice  – Exercise of Tribunal discretion – Change in applicant’s circumstances

LEGISLATION

Migration Act 1958, s 65, 104(1)
Migration Regulation 1994, Schedule 2 cl 570. 314

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 on 2 June 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 23 November 2015. The applicant applied for the visa as a member of the family unit of his spouse, Ms Angie Julieth Marin Ruge. Ms Marin Ruge held a Student visa. In his application the applicant stated that he married Ms Marin Ruge on 24 October 2015.

3. The delegate refused to grant the visa as it was found that the applicant did not satisfy cl. 570.314 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the applicant was a member of the family unit of Ms Marin Ruge for the purposes of a Student visa application. The delegate noted that when Ms Marin Ruge lodged her application for a Student visa on 11 September 2015 she listed her relationship status as never married. Although the applicant and Ms Marin Ruge married on 24 October 2015, no members her family unit were declared until after the time of the grant of the Student visa to Ms Marin Ruge on 17 November 2015.

4. On 17 June 2016, the Tribunal received an application for the of the delegate’s decision from the applicant. On 31 January 2017 and 7 February 2017, the Tribunal received written submissions from the applicant and his representative.

5. The applicant appeared before the Tribunal on 1 February 2017 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies the criteria set out in cl.572.314 of Schedule 2 to the Regulations.

   [570.314] (1)    If the applicant claims to be 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, the applicant meets subclause (2) or (3).

   [570.314] (2)    The applicant meets this subclause if:

   (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

   (b)    the applicant was included in the primary person’s application under subregulation 2.07AF(3) or in information provided in relation to the primary person’s application under subregulation 2.07AF(4).

   [570.314] (3)    The applicant meets this subclause if the applicant became a member of the family unit of the primary person:

   (a)    after the grant of the student visa to the primary person; and

   (b)    before the application was made.

9. The applicant gave evidence to the Tribunal consistent with his written submissions. The applicant had provided statements from family members and a statement of Ms Marin Ruge which confirmed that the applicant and Ms Marin Ruge had been in a relationship together since 2013. The Tribunal acknowledges receipts of photographs, evidence of joint travel, cohabitation and shared financial resources which demonstrate a genuine relationship between Ms Marin Ruge and the applicant. The Tribunal finds that the applicant married Ms Marin Ruge on 25 November 2016.

10. The Tribunal finds that Ms Marin Ruge lodged her application for a Student visa on 11 September 2015.

11. It is not disputed, and the Tribunal finds that, Ms Marin Ruge listed her relationship status in her application as “never married”. It is the evidence of the applicant that he had been in living with Marin Ruge in a de facto relationship for 5 months prior to her lodging the application. The evidence to the Tribunal was that Ms Marin Ruge did not include him in the application as in Colombia, relationships are defined as either single or married, there is no provision for de facto relationships. When lodging the application Ms Marin Ruge selected “never married” as at that time she was not married to the applicant and there was no intention to mislead the Department. The applicant further submitted that they had been misled by their previous migration agent, who was informed of their relationship, and advised that there was no requirement to add the applicant as a dependent in Ms Marin Ruge’s application. The Tribunal acknowledges that these are plausible explanations for the omission. However, the Tribunal finds that the applicant was not included as a member of the family unit of Ms Marin Ruge at the time of her application. The applicant therefore does not meet subclause 570.314(2).

12. It was submitted to the Tribunal that the applicant and Ms Marin Ruge were ill-advised by their migration agent that they could submit evidence of their marriage after the grant of Ms Marin Ruge’s Student visa. The applicant claimed that the failure to advise the Department of their marriage prior to the grant of Ms Marin Ruge’s visa was an honest and genuine mistake. The Tribunal also accepts this explanation as plausible yet finds that the applicant became a member of the family unit of Ms Marin Ruge before the grant of the Student visa to her on 17 November 2015. Therefore the applicant does not satisfy subclause 570.314(3).

13. The applicant has requested that the Tribunal exercise discretion and grant the application. However, clause 570.314 of Schedule 2 to the Regulations does not provide the Tribunal with discretion.

14. It is further submitted that section 104(1) of the Migration Act operates such that the obligation of Ms Marin Ruge to inform was as soon as practicable and by the applicant lodging the application on 25 November 2015, just over a month the Department had been informed as soon as reasonably practicable. The Tribunal has considered the submissions of the representative of the applicant and the Tribunal is not satisfied that section 104(1) of the Act operates to modify the criteria that must be satisfied in clause 570.314 of Schedule 2 to the Regulations. The provisions of the clause clearly set out time of application and time of grant criteria for a person to be recognised as a member of the family unit of the visa applicant. Furthermore, the Tribunal is also not satisfied that the lodgement of a further application by the applicant equates to Ms Marin Ruge informing the Department of a change in her circumstances.

15. Accordingly, the Tribunal finds that the applicant does not satisfy cl.5720.314 of Schedule 2.

16. There is no suggestion that the applicant meets any of the primary criteria for the grant of a student visa or the requirements of any other subclasses within the Student Class TU visa class.

17. For these reasons, the Tribunal finds that criteria for the grant of a Subclass 570 visa are not met.  As there is no evidence the applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.

    DECISION

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

    Penelope Hunter
    Member

    
    

    ATTACHMENT – Extracts from the Migration Regulations 1994

    570.223(1)     The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant meets the requirements of subclause (2).

    (2)An applicant meets the requirements of this subclause if:

    (a)the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 570 and the assessment level to which the applicant is subject, in relation to:

    (i)the applicant’s English language proficiency for the purposes of each ELICOS that the applicant proposes to undertake; and

    (ii)the financial capacity of the applicant to undertake each of those ELICOS without contravening any condition of the visa relating to work; and

    (iii)other requirements under Schedule 5A; and

    (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)any other relevant matter; and

    (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.