Tiong (Migration)

[2020] AATA 6140

Tiong (Migration) [2020] AATA 6140 (22 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jun Sheng Tiong

CASE NUMBER:  1901816

HOME AFFAIRS REFERENCE(S):          BCC2018/4671355

MEMBER:Adrienne Millbank

DATE:22 April 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 22 April 2020 at 11:52 am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of family unit of primary visa holder – boyfriend at time of girlfriend’s primary application, and not included in her application – not mentioned in girlfriend’s personal statement – relationship entered into and registered between application and decision, and notified to department after decision, when relationship certificate received – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 500.311(a)

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 22 January 2019 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 is a 27-year-old citizen of Malaysia. He first arrived in Australia in April 2014 on a Student (Subclass 570) visa, and was granted a further Student (Subclass 500) visa in September 2016. He enrolled in business and business administration courses in Australia. His last Student (Subclass 500) visa ceased on 12 December 2018.

3. The applicant applied for the visa on 24 October 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa as a secondary (subsequent entrant) applicant and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

4. 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).

5. Clause 500.311 requires that 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.

6. The delegate noted in the decision record that the primary visa holder declared her relationship status as single when she lodged her visa application on 21 August 2018; that the applicant claimed, and provided evidence in the form of a Queensland Civil Partnership Certificate, that he became a member of the family unit of the primary visa holder on 27 August 2018; and that the Department was not notified in writing before the decision to grant the primary visa holder a visa was made, on 31 August 2018, as required by r.2.07AF(4), that the applicant had become a member of the primary visa holder’s family unit. Therefore, the applicant did not meet cl.500.311.

7. The applicant appeared before the Tribunal by phone on 14 April 2020 to give evidence and present arguments. The Tribunal also received oral evidence by phone from the visa holder.

8. The applicant was assisted in relation to the review by his registered migration agent, who attended the hearing also by phone.

9. A further submission and documents, which the Tribunal has considered, were received by the Tribunal on 20 April 2020.

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

    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 who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant lodged an application as a subsequent entrant, and the issue is whether he meets the criteria in cl.500.311.

12. At hearing, the applicant acknowledged that he did not meet cl.500.311(a). He stated that he was not a member of the family unit of the primary visa holder before she lodged her application on 21 August 2018. He stated that they were only boyfriend and girlfriend at that time. He stated that his own student visa was due to expire, and he and the visa holder decided to enter into a de facto relationship when they realised they did not want to be separated from each other. He claimed that he and the visa holder started living together in late August 2018. As noted, he provided a copy of a Queensland Relationship Certificate, certifying that he and the visa holder registered their relationship in Brisbane on 27 August 2018.

13. The Tribunal referred the applicant to statements provided to the Tribunal which appeared inconsistent with the explanation provided to the Department that the visa holder wasn’t in a de facto relationship with the applicant on 21 August 2018, when she lodged her own visa application. The representative in her submission of 10 April 2020 states ‘they had been living apart from each other for about 2 years before, and they did not want to have a long distance relationship again’, and in an undated Statement of Genuine Entrant’ provided to the Tribunal, the applicant states:

    I got to know my partner [the visa holder] about 6 years ago in Malaysia, and we started dating since 2 and half years ago … All of our friends and family know about our relationship and support us being together … I would like to stay together with my partner to support her studying here since in the last 6 years, we always lived apart from each other. I am very good at cooking, as such, while my partner is busy with studying, I can look after here well, and does house chores to keep our place clean and tidy. [sic]

14. The Tribunal asked the applicant why, if the relationship was long-term and serious, and if the relationship was supported by family and friends, and if the parties could not bear to live apart, they hadn’t got married. The applicant claimed that they intend to marry after the primary visa holder completes her studies in Australia and they return to Malaysia. The Tribunal asked the primary visa holder why she and the applicant registered their relationship, if they plan to marry. She stated that they had to register the relationship for the purpose of the visa application because they hadn’t been in a de facto relationship for 12 months at the time of application.

15. The Tribunal put to the visa holder that in an undated Personal Statement that appeared to have been written at the time of application, and which was provided by the parties to the Tribunal, she provided no indication that she had been in a long-term relationship with the applicant, such as to need his ongoing support and companionship. She wrote in this statement about her personal ambition to open her own café in Malaysia; advised that she has two friends with experience in the café business who will provide her with suggestions and assistance; advised that her parents support her decision to remain studying in Australia; and advised that her parents have agreed to continue to support her ‘in term of financial during my study period’. The visa holder confirmed that she wrote this statement when she lodged her application, and at this time, 21 August 2018, she was not in a relationship with the applicant, they were just boyfriend and girlfriend.

16. Based on the above, the Tribunal finds that the applicant does not meet cl.500.311(a).

17. The Tribunal asked the applicant why the primary visa holder did not provide information in writing about the relationship, identifying him, as required, before the decision was made on 31 August 2018 to grant her a visa. The applicant acknowledged that the relationship was registered on 27 August 2018, but claimed that they didn’t receive a copy of the relationship certificate until 4 September 2018. The applicant claimed that they didn’t know before receiving the certificate whether or not the relationship had been ‘approved’ as a legal partnership, and for this reason they did not advise the Department about it before the primary visa holder’s visa was granted.

18. The Tribunal put to the parties that the requirement in the Regulations is for the applicant to be a member of the family unit of the primary visa holder, in their case, to be in a de facto relationship, not to be the holder of a relationship or any other sort of certificate. The visa holder stated that they had no other evidence to support the applicant’s claim to be a member of her family unit, and for this reason they believed that a copy of a relationship certificate would be required.

19. On 20 April 2020, as noted, the Tribunal received a further submission and documents. The submission from the parties’ representative stated that the secondary applicant was ‘just the boyfriend’ of the visa holder when she lodged her application, and that she did not inform the Department regarding her change of circumstance because the parties did not learn until 4 September 2018 that they had successfully registered their civil partnership. Documents were provided showing the parties lived at different addresses before 2018, and that they have been in a relationship since late 2018. The Tribunal notes that statements of transactions from the parties’ joint bank account, identifying them as at the same residential address, were provided from 28 June 2018.

20. The parties registered their relationship on 27 August 2018, 6 days after the visa holder lodged her visa application, and the Tribunal finds that they claimed to be in a de facto relationship on and from this date. The primary visa holder’s Student (Subclass 500) visa was granted on 31 August 2018. Therefore, the applicant did not become a member of the family unit of the primary person after the grant of the student visa to the primary person. Therefore, the applicant does not meet cl.500.311(b).

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

22. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. 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

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

    Adrienne Millbank
    Member