Zhang (Migration)

[2021] AATA 1235

Zhang (Migration) [2021] AATA 1235 (27 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Wei Zhang

CASE NUMBER:  2001829

HOME AFFAIRS REFERENCE(S):          BCC2019/4734837

MEMBER:Mark Bishop

DATE:27 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 27 April 2021 at 9:48am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of family unit not included in visa application of primary visa applicant – primary applicant selected ‘married’ but did not list any accompanying family members – long-term and genuine relationship – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.07AF(3), 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 16 January 2020 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 20 September 2019. 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 primary person failed to include the applicant as a member of his family unit when he applied for a student visa on 5 March 2018.

4. In this review application the primary person is Siyuan WU. He is the holder of a student visa. In this case the secondary person and the review applicant are the same person, Miss Wei ZHANG. 

5. The applicant appeared before the Tribunal on 27 April 2021 to give evidence and present arguments.

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. The issue in the present case is whether the primary person declared the secondary person as a member of his family unit at the time of application for his student visa.

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);
   
   (b) the applicant became a member of the family unit of the primary person:
   
   after the grant of the student visa to the primary person;
   (ii) and before the application was made.

10. On 16 January 2020 the delegate found as follows:

    ·The applicant applied for a subsequent entrant dependent student visa (Subclass 500) on 20 September 2019 on the basis that she was the member of the family unit of a person holding a student visa, Siyuan WU.

    ·The applicant provided a marriage certificate to the Department dated 22 February 2018 and it was stated in their Genuine Temporary Entrant (GTE) statement they were married in 2018.

    ·On 6 November 2019 the Department invited the applicant to comment on not being declared as a member of the family unit on the primary person student’s application prior to the grant of his visa. No comment had been received at the time of the delegate’s decision.

    ·On 2 December 2019 the applicant stated it was a mistake as he did not understand the meaning of the question. He selected married on the application but selected ‘no’ in regard to any accompanying members of the family unit.

    ·The delegate found that the primary person did not include the review applicant in his student visa application as an unaccompanied or accompanying family member. The delegate made a finding that the secondary person (review applicant) did not meet the criteria set out in cl.500.311 of the Regulations.

11. The applicant provided the following information to the Tribunal:

    ·Joint Residential Tenancy Agreement in the names of Wei ZHNAG and SIYUAN WU dated 12 November 2020.

    ·Gas bill in the name of ‘Mr WU’ for the period of 26 April 2018 until 19 March 2021.

    ·Telstra bill in the name of Wei ZHANG for the period of 17 March 2020 until 16 March 2021.

    ·Medical record for Wei ZHANG dated 28 January 2020.

    ·Medical Certificate for Wei ZHANG dated 30 January 2020.

    ·Joint Bank Statements in the names of Wei ZHANG and SIYUAN WU for the periods of 24 March 2021 until 9 April 2021 and 1 July 2020 until 21 December 2021.

    ·Report from Physiotherapist/ Counsellor for Wei ZHANG dated 22 July 2020.

    ·Translated marriage certificate in the names of Wei ZHANG and SIYUAN WU dated 22 February 2018.

12. Timeline of visa applications:

    ·Marriage between primary person and review applicant registered 22 February 2018.

    ·The primary person, SIYUAN WU applied for a student visa on 5 March 2018.

    ·The primary person, SIYUAN WU student visa application was approved on 27 March 2018.

    ·The review applicant, Wei ZHANG applied for a student (Subsequent entrant) visa on 20 September 2019.

13. The Tribunal examined the file and the Tribunal is satisfied that the finding of the delegate is correct. The applicants were in a married since 22 February 2018. The primary person applied after this date on 5 March 2018 and failed to include the secondary applicant on the visa application.

14. In evidence to the Tribunal the applicant explained she first came to Australia in November 2013, had been in a relationship with her then boyfriend (now husband) since high school, entered into a de facto relationship and lived together with the primary person in rented premises from February 2014 in Australia,  completed her studies in Australia in 2017, had not worked in Australia since that time as she was looking after her de facto partner (now husband) was married to the primary person in February 2018, remained married to the primary person, miscarried in February 2020, the primary person would conclude his PhD studies in June 2021 and the applicant and primary person would return to China in 2022. In response to a question from the Tribunal the applicant explained she was aware of her appeal rights to the Federal Circuit Court of Australia. The applicant also proffered and explanation to the Tribunal for the reason the primary person failed to disclose correct details as to the nature of his relationship (see dot point 4 of paragraph 10 above).

15. The Tribunal has reviewed all the material on the Departmental and Tribunal files.

16. Whilst the Tribunal does not make a finding on this point the applicant made it clear she had been living in a de facto relationship with the primary person in Australia since February 2014. The applicant made it clear to the Tribunal this relationship was permanent and genuine.

17. The Tribunal is satisfied the applicant became a member of the family unit of a person (the primary person) who holds a student visa before the grant of the student visa to the primary person and was not (emphasis added) included in the primary person’s application under sub regulation 2.07AF(3). Hence the applicant does not meet cl.500.311(a) of the regulations

18. The Tribunal is satisfied the applicant became a member of the family unit of the primary person on and from 22 February 2018. This date is prior to the date of issue of a student visa to the primary person on 27 March 2018 (see paragraph 12 above). Hence cl.500.311(b) is not relevant.

19. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.311 of the Regulations.

20. 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

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

    Mark Bishop

    Member