Wang (Migration)

[2019] AATA 1657

Wang (Migration) [2019] AATA 1657 (1 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kai-Lin Wang

CASE NUMBER:  1622276

HOME AFFAIRS REFERENCE(S):           BCC2016/3594184

MEMBER:Meredith Jackson

DATE:1 February 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 01 February 2019 at 11:05am

CATCHWORDS
MIGRATION – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – Student (Subsequent Entrant) – member of a family unit at time of application – partner not declared in visa application – misleading advice – relationship not declared as required – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, r 2.07A(f), 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 6 December 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) Student (Subsequent Entrant) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 October 2016. 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 applicant failed to satisfy clause 500.311.

4. The applicant appeared before the Tribunal on 19 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Mr Antonio Gatta.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria 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 satisfies clause 500.311, which requires that an application by a person who seeks to satisfy the primary criteria for the grand of a Student visa 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 application cl.500.311(3). 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 the name, date of birth and citizenship of the person and the relationship between the person and the primary applicant.

   Summary of the applicant’s case

7. The applicant, Ms Kai-Lin Wang, is a 37 year old citizen of China who is seeking to be added as a subsequent entrant to the Student visa of her partner Mr Antonio Gatta, a citizen of Italy. Ms Wang applied for a Student (Subsequent Entrant) visa on 28 October 2016. When Mr Gatta applied for his Student visa on 9 March 2016, he did not include Ms Wang as a family member and stated subsequently that he was single and all his family were in Italy. Ms Wang claims however that the partnership, which is was registered as a Civil Partnership in Queensland in 2016, was first formed in January 2014. Mr Gatta does not dispute this. Further, the parties claim that the reason Ms Wang was not declared in the visa application as required by the Regulations was due to misleading advice provided by the parties’ then migration agent that the relationship did not need to be declared in Mr Gatta’s Student visa application.  The questions however are not that the parties were misled, but whether the family relationship existed at the time of the application and whether it was declared as required by the Regulations. The Tribunal finds it did exist, and Mr Gatta, supported by the applicant Ms Wang, chose not to declare it.

   Documentary and oral evidence considered

8. The Tribunal has considered documentary submissions including:

   i.The delegate’s decision;

   ii.The applicant’s Civil Partnership Certificate dated 16 February 2017 recording a Civil Partnership between Mr Antonio Gatta and Ms Kai-Lin Wang;

   iii.A Confirmation of Enrolment for Mr Gatta, supplied by the applicant at the Hearing, recording that he was enrolled in a diploma course commencing on 16 April 2018 and finishing on 12 October 2018.

   Interpreter provided

9. Shortly after the commencement of the Hearing, the Tribunal expressed a concern that Ms Wang may be experiencing some difficulty understanding the Tribunal’s remarks and questions. The Tribunal asked the applicant if she was able to understand the proceedings and the applicant replied that she was. The Tribunal indicated that the applicant did appear to be having some difficulty understanding what was said and asked if the applicant would benefit from an interpreter. The applicant said that she would, and an interpreter in the Mandarin and English languages was arranged. The interpreter provided language assistance to Ms Wang for the remainder of the Hearing.

10. The Tribunal referred Ms Wang to information about her case in the delegate’s decision and explained its relevance in that the information might be the reason, or part thereof, to affirm the decision. This information included, as outlined in the delegate’s decision, that Mr Gatta’s application for the Student Subclass 572 visa on 28 October 2016, did not include any dependant applicants as members of the family unit. Further, the Tribunal referred Ms Wang to a statement, supplied by Mr Gatta to the department on 18 March 2016, in which he stated “I am currently single, and all my family members are back in Italy”.

11. The Tribunal notes that Mr Gatta’s visa was granted on 29 April 2016 and remained valid until 2 November 2018. The Tribunal also notes that it was not until 28 October 2016 that Ms Wang sought to be added to Mr Gatta’s visa. The decision recorded that Ms Wang had provided evidence in support of the application in the form of a personal statement, stating that her relationship with Mr Gatta commenced on 31 January 2014. The delegate’s decision indicated that as Ms Wang was a member of Mr Gatta’s family unit at the time of his application, but she was not declared as required by regulation 2.07A(f), and therefore she did not meet the specified criteria.

12. The Tribunal asked Ms Wang if she understood this information and its relevance to the Tribunal’s decision, and she replied that she did. The Tribunal then asked Ms Wang if she had any comment to make on the information. In response, Ms Wang advised that, at the time Mr Gatta had applied for the visa, both she and Mr Gatta did not have very good English skills and had relied on advice from their agent. She stated: “We understood that the government regulation does not require us to provide marital status. In March 2016 the agent told us it doesn’t matter if we put down single or not single, there’s no difference.”

13. At the Hearing, the Tribunal also heard evidence from Mr Gatta, who claimed that he had relied on an agent to submit his application. The Tribunal raised the written statement provided by Mr Gatta to the department on 18 March 2016, in which he referred to himself as single and stated that his family were in Italy. By way of response to the Tribunal, Mr Gatta stated “My English was not good and my agency did everything and at that moment it was not important for a student visa as my plan was to stay just a couple of years and that’s it. But then I changed, I find a job I like and I apply for a 187 visa and I apply for sponsorship and for that reason it has become important to put her in the papers – I told the agency.”

    Ms Wang told the Tribunal that, at the time of Mr Gatta’s Student visa application, they had prepared information for the application and provided it to the agent. The agent’s role included translating material into English, and submitting it to the Department on Mr Gatta’s behalf.   

    Conclusions

14. The Tribunal has considered the relevant requirement of clause 500.311, which is that an application by a person who seeks to satisfy the primary criteria for the grand of a Student visa 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 application cl.500.311(3).

15. Against this requirement, the Tribunal has weighed the evidence before it regarding Mr Gatta’s Student visa application and Ms Wang’s application to be added as a Subsequent Entrant to his Student visa. The Tribunal has focussed in particular on whether the relationship existed prior to the application and whether it was declared as required.

16. The Tribunal notes that at the time Mr Gatta lodged his Student visa application on 9 March 2016, he declared his status to be “never married” and did not include any dependant applicants as members of his family unit in the application. Further, on 18 March 2016, Mr Gatta stated that he was currently single and all his family members were in Italy.

17. The Tribunal also notes, however, that when Ms Wang applied to be added as a dependant to Mr Gatta’s visa, on 28 October 2016, she provided evidence to the Department that her relationship with Mr Gatta commenced on 31 January 2014 and she continued to claim that at the review Hearing.

18. At the Hearing, Ms Wang confirmed that she and Mr Gatta had started their relationship in January 2014. In his evidence as a witness, Mr Gatta did not dispute this, instead claimed that, at the time of his Student visa application, he was misled into believing the existence of the relationship was not important to that application. In summary, both Ms Wang and Mr Gatta confirmed to the Tribunal that they their relationship existed in 2014 and confirmed they were at least initially aware of the requirement to declare it in the visa application but chose to believe was optional. The Tribunal has difficulty with this: if declaration was in their mind optional and of no consequence, as they claim, then there was no obstacle to declaration and it would have been logical at this opportunity to do so.

19. In summary, the Tribunal concludes, based on the evidence of the parties themselves at Hearing, that Ms Wang was a member of the family unit at the time of the application and that Mr Gatta chose not to declare her as such in his application as required. Instead, he advised the Department that he was single.

20. The Tribunal has considered Mr Gatta’s evidence that he changed his mind about declaring the relationship once he embarked on a separate, work visa application, having found a suitable job and a sponsorship opportunity. The Tribunal has taken into account his claim that under those circumstances, it became clear to him he needed to declare Ms Wang as a family member and had done so. Further, the Tribunal has considered both parties’ claims in relation to the first (Student) visa that their lack of English at the time of the Student visa application was an obstacle. The Tribunal has weighed this but finds both these arguments are substantially contradicted by the parties’ other evidence: that they knew about the issue of declaring relationships from the time of the Student visa application but chose not to do so.

21. The Tribunal has also considered the evidence of a Civil Partnership registration between Ms Wang and Mr Gatta dated 16 February 2017 and notes the parties make no claim to this being evidence of a relationship formed at a point after Mr Gatta’s Student visa application so the Tribunal finds this to be of no such consequence to the review.

22. The Tribunal on balance considers that as Ms Wang was a member of Mr Gatta’s family unit at the time, as she submits and as Mr Gatta does not dispute, they were on their evidence in a family relationship in 2014, and Mr Gatta did not declare her as such in his Student visa application. Therefore cl.500.311 cannot be met.

23. Taking all the evidence into account, the Tribunal is not satisfied that the applicant meets cl.500.311.

24. 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

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

    Meredith Jackson
    Member