Singh (Migration)

[2018] AATA 3252

Singh (Migration) [2018] AATA 3252 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Justin Singh

CASE NUMBER:  1732707

DIBP REFERENCE(S):  BCC2015/2824646

MEMBER:Mark Bishop

DATE AND TIME OF

ORAL DECISION AND REASONS:          31 May 2018 at 9:56 am (VIC time)

DATE OF WRITTEN RECORD:                30 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Secondary child applicant – Australian born – Primary applicant did not satisfy the student visa requirements – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 573.322

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 December 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under the Migration Act 1958 (the Act).

2. At the hearing on 31 May 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in matter number 1732707, an application by Master Justin Singh. It is an application for review of a decision made by a delegate of the Minister for Immigration on 14 December 2017 to refuse to grant the applicant Master Justin Singh a Student Temporary (Class TU) visa under section 65 of the Migration Act.

4. Some brief history is necessary. The primary visa applicant is Mrs Suniti Devi. Mrs Devi is the mother of the review applicant in the matter currently before the Tribunal. The applicant or the review applicant before the Tribunal is a junior, a young boy of two years and two months, who was born in Australia but not an Australian citizen, a citizen of India.

5. The delegate in this case refused to grant the visa on the basis that the secondary child applicant, Master Justin Singh, did not satisfy the requirements of clause 573.322(b) of schedule 2 to the Regulations because the primary visa applicant, his mother Mrs Suniti Devi, did not satisfy the legislative requirements for the grant of a student visa. The Tribunal and Mrs Devi had a discussion this morning that addressed that fact and Mrs Devi confirmed to the Tribunal in response to questions, that she does not currently hold a student visa and, in fact, holds a bridging visa.

6. The applicant Master Justin Singh and his mother Mrs Devi appeared before the Tribunal today on 31 May to give evidence and present arguments. Some background is necessary. The primary visa applicant Mrs Devi was first granted a student class TU Subclass 572 visa offshore on 10 July 2009 valid until 7 October 2011. The primary visa applicant subsequently arrived in Australia on 26 July 2009. The primary visa applicant was granted two further student visas onshore. Her last student visa class TU Subclass 573 was granted on 25 September 2013 and ceased on 24 September 2015.

7. The applicant was added to his mother's application for a student class TU Subclass 573 visa higher education sector visa at the time of his birth on 3 March 2016 on the basis that he is a member of the family unit of the primary visa applicant Mrs Suniti Devi.

8. On 7 June 2016 a delegate of the Minister for Immigration refused to grant the primary visa applicant's visa on the basis that the primary visa applicant did not satisfy the requirements of clause 573.223(1)(a) of schedule 2 to the Migration Regulations.

9. The primary visa applicant sought a review of that decision before this Tribunal on 15 November 2017. The Tribunal affirmed the decision to refuse to grant student temporary class TU visas to the primary visa applicant and her spouse.

10. On 3 May 2018 the Tribunal wrote to the visa applicant Mrs Suniti Devi, the mother of the review applicant in the current matter, advising of a time of hearing and requesting she attend the Tribunal to appear, give evidence, and present arguments relating to the issues arising in relation to the decision under review. The primary visa applicant Mrs Suniti Devi is the authorised recipient of the applicant.

11. The primary visa applicant Mrs Devi did not respond to the invitation nor did she provide any information to the Tribunal arising out of the request of 3 May 2018. In examination Mrs Devi, the primary applicant and mother of the review applicant Master Justin Singh, advised the Tribunal that she did not currently hold a student visa.

12. Accordingly, there is no information before the Tribunal that leads to the conclusion that the primary visa applicant Mrs Suniti Devi is the holder of a student visa. The review applicant Master Justin Singh is a member of the family unit of the primary visa applicant Mrs Suniti Devi. As the primary visa applicant was found not to meet clause 573.223(1)(a) it follows that the review applicant in the current matter Master Justin Singh does not satisfy clause 573.322 as a member of her family unit.

13. For these reasons the Tribunal finds that the criteria for the grant of a Subclass 573 visa are not met. The Tribunal finds that the review applicant does not meet the criteria for a dependent student class TU Subclass 573 higher education sector visa.

14. The Tribunal in these circumstances affirms the decision of the delegate. The reading of this oral decision is concluded at 9.56 am on 31 May 2018.

    DECISION

15. The Tribunal affirms the decision under review.

    Mark Bishop
    Member