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1302882 [2014] MRTA  1783  (28 July 2014)

Last Updated: 25 August 2014

1302882  [2014] MRTA 1783  (28 July 2014)

DECISION RECORD

APPLICANT: Mr Dhanwant Singh

MRT CASE NUMBER: 1302882

DIBP REFERENCE(S): CLF2012/201150

TRIBUNAL MEMBER: Adam Moore

DATE: 28 July 2014

PLACE OF DECISION: Melbourne

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

Statement made on 28 July 2014 at 3:46pm

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 on 15 February 2013 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under s.65 of the Migration Act 1958 (the Act).
2. The visa applicant applied for the visa on 3 October 2012 as a dependant of his spouse. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.572.236(1)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations). In summary, the delegate’s reasons for so finding were:
   1. Mr Singh was granted a bridging visa on 10 February 2009 as a dependant for his then spouse, Ms Pawadeep's Graduate Skilled visa application.
   2. that the purpose of this visa was to permit Mr Singh to remained onshore with his spouse during the processing of this application.
   100. that Mr Singh remained onshore for more than 2 years alter the reported breakdown of his relationship, without regard to the purpose and intent of his bridging visa.
   4. that Mr Singh chose to remain onshore to pursue a new relationship and continue his employment, without regard to the purpose and intent of the bridging visa he held.
   5. Mr Singh had the opportunity to change his visa status during this time however choose not to do so until contacted by the department in August 2012.
   6. · That there is no evidence either in departmental records or provided by Mr Singh to support that he contacted the department regarding his status.
3. Clause 572.236 states:

§ 572.326
The Minister is satisfied that:
(aa) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(a) the applicant is a genuine applicant for entry and stay as a member of the family unit of the primary person mentioned in clause 572.322; and
(b) that primary person has adequate means to support himself or herself and the members of his or her family unit during the period of the applicant’s intended stay in Australia; and
(c) on the basis of the applicant’s stated intention, the applicant intends to comply with any conditions subject to which the visa is granted; and
(d) if the applicant is required to give evidence in accordance with Schedule 5B — while the applicant holds the visa, the applicant or the primary person will have access to the funds demonstrated or declared in accordance with the requirements in that Schedule..

4. The applicant appeared before the Tribunal on 14 April 2014 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue before the delegate was whether the applicant satisfied the ‘genuine temporary entrant’ criterion found at cl.572.236(1)(a) The issue now is whether the applicant satisfies cl.572.236(a). This is because the applicant told me at the hearing that his now wife no longer holds a Class TU (Student) visa as she has finished her study and is now the holder of a bridging visa pending assessment of an application for a permanent residency visa.
7. The applicant asked me to defer making my decision on the review. I agreed that I would defer making the decision 14 July 2014. I informed the applicant after that date that the decision on the review will be to affirm the decision not to grant the visa because primary visa holder (his spouse) no longer holds a student visa.
8. On 14 July the applicant wrote to the Tribunal submitting a copy of a MRT decision in respect of him and his spouse wherein the Tribunal (differently constituted) remitted the matter for reconsideration with a direction that his spouse meets cl.189.214 of Schedule 2 to the Regulations. The applicant requested that I further defer making a decision on his review for one month to allow time for his wife to obtain a permanent residence visa.
9. I am not inclined to grant that request as I can perceive no substantial injustice that the applicant would suffer. He is an applicant with his wife for the Subclass 189 visa. I am confident that pending processing of that visa application, he would be eligible to be granted a bridging visa. There seems to me little utility in further delaying the review of his student visa application.
10. Based on his evidence, the applicant is not a family member of a primary person mentioned in clause 572.322 and as a result does not satisfy cl.572.236(a).
11. The Tribunal has found the applicant does not meet an essential requirement of cl.572.236. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass.
12. There is also no evidence or claim that the applicant satisfies any of the primary criteria for the grant of a Class TU visa. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

DECISION

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

Adam Moore
Member