Zou (Migration)

[2021] AATA 1560

Zou (Migration) [2021] AATA 1560 (31 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ji Zou

CASE NUMBER:  1935361

HOME AFFAIRS REFERENCE(S):          BCC2019/4342424

MEMBER:Mark Bishop

DATE:31 March 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 31 March 2021 at 1:14pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of family unit – secondary applicant not included in primary applicant’s visa application – confusion about terms ‘never married’ and ‘de facto’ – both currently in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.07AF(3), Schedule 2, cl 500.311(b)

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 27 November 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 applied for the visa on 30 August 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 23 October 2018.

4. In this review application the primary person is Wenjie DENG. He is the holder of a Student visa. In this case the secondary person and the review applicant are the same person, Ms Ji Zou. 

5. The applicant appeared before the Tribunal on 31 March 2021 to give evidence and present arguments. The primary person did not appear before the Tribunal. The applicant advised the primary person was now in a different part of China to herself. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was assisted in relation to the review by her 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 27 November 2019 the delegate found as follows:

    ·The applicant applied for a subsequent entrant dependent student visa (Subclass 500) on 30 August 2019 on the basis that she was the member of the family unit of a person holding a student visa, Wenjie DENG.

    ·The applicant stated their de facto relationship commenced on 14 February 2016.

    ·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 primary person declared their relationship status as never been married or in a de facto relationship at time of lodgement. 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:

    ·Screenshot of Account Summary for Yarra Valley Water in the name of Ji ZOU and with the Authorised representative as Wenjie DENG

    ·Images of couple

    ·Driver’s license of Bingqian Liu

    ·Joint Electricity Account for the period of 23 January 2020 to 23 April 2020

    ·Joint Gas Account for the period of 16 December 2020 to 16 February 2021

    ·Joint Bank statement for the period of 1 October 2019 to 31 December 2020

    ·Relationship Certificate for Ji ZOU and Wenjie DENG registered on 18 June 2020

    ·Statutory declaration from the primary person dated 21 November 2019 outlined the following:

    oHe met the review applicant in 2016 at the Spring Festival.

    oThey established their relationship on 14 February and eventually moved in together.

    ·Submission from the applicant dated 6 August 2019 outlined the following:

    o   She met the primary person in 2016 at the Spring Festival.

    o   They established their relationship on 14 February 2016.

    o   In 2016, they began to live together.

    o   The couple have travelled to China together.

    o   The primary person will complete his course in IT.

    o   The review applicant plans to obtain an internship, get married and start a family.

    ·Statutory declaration from Peng Fei Li dated 25 November 2019 outlined the following:

    oHe met them at a party in January 2018 and his friend Anqi Li is their neighbour.

    oHe believes their relationship is genuine.

    ·Statutory declaration from BingQian Liu dated 24 November 2019 outlined the following:

    oThey have been friends with the review applicant for 3 years and were first roommates.

    oThey see the review applicant on average once a month.

    oThey believe their relationship to be genuine.

    ·Letter of support from Jiawei Liu dated 21 November 2019 outlined the following:

    oThey lived with the review applicant and primary person from November 2017 to November 2019.

    oThey believe their relationship to be genuine.

    ·Submission from the primary person dated 25 November 2019 outlined the following:

    o   He did not include the review applicant in his student application as he misunderstood the meaning of ‘never married’ due to Chinese cultural differences.

    ·Statutory declaration from Jiaxin Xu dated 24 November 2019 outlined the following:

    o   She lived with both the review applicant and primary person from the end of 2017 to 2018 at 2B Talbett Street, Burwood.

    o   She believes their relationship to be genuine, due to living in the same room and their plans for marriage.

    ·Form 1023 Notification of Incorrect Answers dated 30 August 2019 outlined the following:

    oThe incorrect information was unintentionally provided as the applicant found the term ‘never married’ confusing. 

12. Timeline of visa applications:

    ·The primary person and review applicant stated they began their relationship on 14 February 2016.

    ·The primary person, Wenjie DENG applied for a student visa on 23 October 2018.

    ·The primary person Wenjie DENG ( as per the unchallenged finding of the delegate) did not include the review applicant in his student visa application as an unaccompanied or accompanying family member. The primary person declared their relationship status as never been married or in a de facto relationship at time of lodgement.

    ·The primary person, Wenjie DENG’s student visa application was approved on 12 December 2018.

    ·The review applicant Ji ZOU applied for a student (Subsequent entrant) visa on 30 August 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 relationship from 14 February 2016 and lived together in a de facto relationship from December 2016. The primary person applied after this date on 23 October 2018 and failed to include the secondary applicant on the visa application. In evidence to the Tribunal the applicant confirmed this sequence of dates was correct. She advised the Tribunal that in China a person was either single or married and whilst she and the primary person had seen the descriptor “de facto” on the relevant forms they had not understood its meaning. The applicant apologised for any inconvenience when the Tribunal explained that in the current review application the Tribunal was required to apply Australian law and not Chinese law.

14. 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

15. The Tribunal is satisfied the applicant became a member of the family unit of the primary person in December 2016. This date is prior to the date of issue of a student visa to the primary person on 12 December 2018 (see paragraph 13 above). Hence cl.500.311(b) is not relevant.

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

17. 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

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

    Mark Bishop

    Member