Singh (Migration)

[2021] AATA 4932

Singh (Migration) [2021] AATA 4932 (15 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nirmal Singh

CASE NUMBER:  2107692

HOME AFFAIRS REFERENCE(S):          BCC2020/2297662

MEMBER:Wendy Banfield

DATE:15 November 2021

PLACE OF DECISION:  Canberra

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

Statement made on 15 November 2021 at 1:23pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–– applicant is not a member of the family unit of a person (the primary person) who holds a student visa – primary person no longer holds a Student visa – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 24 May 2021 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 14 September 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’s spouse, Ms Ranjeeta had applied for a Student (Temporary) (Class TU) visa with Mr Singh and their two infant children as dependent applicants. The application was refused, and Mr Singh applied for a review of the decision. Ms Ranjeeta and their children were not parties to the application before the Tribunal.

4. The delegate in this case refused to grant the visa on the basis that the applicant Mr Singh did not satisfy the requirements of cl 500.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the primary applicant’s visa was refused. Therefore, the applicant did not meet the criteria for the grant of the visa as a member of the family unit.

5. The applicant submitted the following relevant evidence in support of the application for review:

   ·Department of Home Affairs (the Department) notification and decision record dated 24 May 2021.

   ·Applicant’s written statement (undated).

6. The Tribunal also considered the evidence provided to the Department at the time of application for the visa.

7. The applicant appeared before the Tribunal on 12 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 is a member of the family unit of a person who holds a student visa, the primary applicant having satisfied the criteria for that visa.

11. Clause 500.311 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.

12. The applicant gave evidence at the Tribunal hearing that his wife, the primary visa applicant had departed Australia. She had been unable to return to Australia due to the COVID-19 pandemic. He confirmed she no longer holds a Student visa. The Tribunal explained to the applicant that since the primary visa applicant was refused a Student visa, he is not eligible to be granted the visa as a dependent applicant. The applicant said he and his wife had been hopeful they would still be granted a visa. However, the applicant said if he is not granted a visa, he will be returning to India.

13. On the basis of the evidence available to the Tribunal, the applicant is not 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.

14. Accordingly, the Tribunal is not satisfied that the applicant meets cl 500.311.

15. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. Mr Singh does not claim to meet the criteria for a Student (Temporary) (Class TU) visa as a primary applicant, or a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Wendy Banfield
    Member