Villa Torres (Migration)

[2018] AATA 3497

Villa Torres (Migration) [2018] AATA 3497 (1 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David Francisco Villa Torres

CASE NUMBER:  1720942

HOME AFFAIRS REFERENCE(S):           BCC2017/2594936

MEMBER:Mark Bishop

DATE:1 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 01 August 2018 at 2:49pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Failure to declare the relationship – Parties lived together as a de facto couple at the time of the application – Member of the same family unit – No compelling circumstances – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), r 2.07AF 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 Immigration and Border Protection on 5 September 2017 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 21 July 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 associated visa holder Yesica Lorena Gongora HERRERA lodged her current student visa (Class TU subclass 500) visa on 17 May 2016 as the primary applicant and declared her relationship status at that time as never married/de facto. The primary applicant did not include in her application any dependant applicants as members of her family unit. The primary person’s visa was granted on 11 July 2016.

4. The primary person Yesica Lorena Gongora HERRERA was previously the applicant’s de facto partner and is now the wife of the secondary person, David Francisco VILLA TORRES.

5. The applicant appeared before the Tribunal on 3 July 2018 to give evidence and present arguments. The primary person also gave evidence to the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

6. The applicant was assisted in relation to the review by their 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 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.

9. The issue in this case is whether the applicant meets cl.500.311 of Schedule 2 to the Migration Regulations which relevantly states:

   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;

   (ii)and before the application was made.

10. Regulation 2.07AF requires the following:

    (1)  This regulation applies in respect of an application for a Student (Temporary) (Class TU) visa.

    (2)  Despite anything in regulation 2.07, an application may be made on behalf of an applicant.

    (3)  An application by a person who seeks to satisfy the primary criteria (the primary applicant) must include:

    (a)  the name, date of birth and citizenship of each person who is a member of the family unit of the applicant at the time of the application; and
    (b)  the relationship between the person and the applicant.  

    (4)  If a person becomes a member of the family unit of the primary applicant after the time of application and before the time of decision, the primary applicant must inform the Minister, in writing, of:

    (a)  the name, date of birth and citizenship of the person and
    (b)  the relationship between the person and the primary applicant. 

    (5)  Subregulations (3) and (4) apply:

    (a)  whether or not the member of the family unit is an applicant for a Student (Temporary) (Class TU) visa; and   
    (b)  if the member of the family unit is not an applicant for a Student (Temporary) (Class TU) visa — whether or not the member of the family unit intends to become an applicant for a Student (Temporary) (Class TU) visa.

11. The Tribunal asked the applicant to confirm when he entered into a de facto relationship with the primary person. The applicant advised he came to Australia in June 2012, met Yesica HERRERA in Australia in late 2014 and began a de facto relationship on 26 May 2015. The applicant advised he was aware people lived together without being married in Colombia. See paragraphs14 below and 18.

12. The Tribunal asked the applicant to explain the detail of their relationship since its inception. The applicant explained they originally lived in the same building, different apartments, and after 10 months started living together. Thereafter they started working together as well. In 2016 they had their first holiday together and returned to Colombia together to see families. From that time the relationship grew stronger.  The purpose of the visit to Colombia was to receive blessings from their respective families. Both families have given their blessings to the marriage.

13. The delegate noted in the decision record, a copy of which was provided to the Tribunal, the applicant provided to the delegate a copy of an application to register a domestic relationship stating as evidence that he had been in a relationship with Yesica Lorena Gongora HERRERA as of 26 May 2015.

14. The applicant provided a statement dated 19 June 2018 that provided as follows:

    ·The applicant and the primary person entered into a de facto relationship that commenced on 26 May 2015:

    ·The applicant and the primary person are part of a genuine couple;

    ·The couple got married on 7 June 2018;

    ·The concept of “de facto” does not exist in a legal sense. Even if you are in an open relationship in legal terms you are still single and the use of the term de facto does not exist;

    ·A copy of a Certificate of Marriage dated 7 June 2018 between the applicant and the primary person was provided.

15. The Tribunal explained the relevance of the date of application of the primary person for a student visa on 17 May 2016 and its meaning in the current review application.

16. The Tribunal spent considerable time explaining the process and the importance of particular dates to the applicant.

17. The applicant and his MA both advised the Tribunal they understood the significance of the failure of the primary person to declare her relationship with the applicant when she applied for a Student visa.

18. The Tribunal has regard to the submission of the applicant as outlined in paragraph 14 above that “the concept of ‘de facto’ does not exist in a legal sense. Even if you are in an open relationship in legal terms you are still single and the use of the term de facto does not exist”. The Tribunal acknowledges this claim and notes the definition of de facto partner is set out in s.5CB of the Migration Act, so the concept of de facto relationship does exist legally.

19. On the evidence, the Tribunal finds the applicant became a member of the family unit of the primary person, Yesica HERRERA, on 26 May 2015 and therefore became a member of her family unit before Yesica Herrera’s student visa application on 17 May 2016 and before the grant of her student visa on 11 July 2016. Therefore cl.500.311(a) applies and the primary person was required to meet r.2.07AF(3) or (4).

20. The Tribunal acknowledges the primary person and the applicant were married on 7 June 2018. As the Tribunal has already found the applicant was a member of Yesica’s family unit before she lodged her student visa application, the date of the marriage is not a relevant consideration in the deliberations of the Tribunal.

21. In these circumstances r.2.07AF(3) is not satisfied as the primary persons’ student visa application did not include the name, date of birth, citizenship and relationship between the primary person and the applicant.

22. In these circumstances r.2.07AF(4) is not relevant as the applicant became a member of the family unit of the primary person before the time of application.

23. The Tribunal finds that as the applicant was not included in the primary person’s student visa application under r.2.07AF(3) or in information provided in relation to the application under r.2.07AF(4), then the applicant does not satisfy cl.500.311(a).

24. Accordingly the Tribunal finds that the applicant does not meet cl.500.311.

25. After the hearing was concluded the MA for the applicant forwarded a further submission to the Tribunal. It read as follows:

    ·“I appreciate your kindness. I’d like to send a kind message to the reverent Member Mr. Mark Bishop related to the hearing today. Please let me know how it can be, if I can send it through this email or if he has an specific email.

    ·It is just to say that we appreciate the facts given in the hearing today and with all respect; My client appealed to the tribunal on the 07th September 2017 and my client today understands the concept of De Facto relationship; however please consider that at the time of the decision Mr. Villa was in a De Facto Relationship according with the Registration given to the Tribunal and to the Department at the time of the visa application. Please consider that now they are a married couple and we would like you to take in account the compelling circumstances due to the marriage and that they cannot live separated. As you mentioned He may apply to a visitor visa from overseas however he won’t be able to work and support each other as married couple. Any kind of visa hey may apply offshore, could be refused overseas due to the actual visa refusal and even more if the case is affirmed. All kind of visas take long to be processed and they are a very stable and genuine couple; and they want just to stay together and leave Australia once his wife’s student visa expires as you know according with my client’s testimony at the hearing today.

    ·There is a similar case I attended last week, it was considered and the decision was remitted to the Department for reconsideration. Please make reference to the case of Mr. Oscar Orlando Valencia Rendon Case number 1617897 with oral decision on the 26th June 2018 at 12.42pm; if that is possible for your kind consideration and obviously if that could be possible.

    ·Many thanks again for your considerations.”

26. The Tribunal has considered this submission. The Tribunal has reviewed the decision in Case number 1617897, and note that the factual circumstances in that case differ from the circumstances in this review application, so case 1617897 does not have any relevance to the current review application. The Tribunal is also not obliged to give any weight to another Tribunal decision.

27. 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

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

    Mark Bishop
    Member