1407170 (Migration) - [2015] AATA 3120

1407170 (Migration) [2015] AATA 3120 (23 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Analisa Lucas
VISA APPLICANT:  Miss Ma Nica Arzela Lucas
CASE NUMBER:  1407170
DIBP REFERENCE(S):  OSF2013/041972
MEMBER:Alan Duri
DATE:23 July 2015
PLACE OF DECISION:  Sydney
DECISION:The tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl.101.213 of Schedule 2 to the Regulations.

Statement made on 23 July 2015 at 9:11am
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 April 2014 to refuse to grant Miss Lucas a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
Miss Lucas was born on 31 January 1991 in the Philippines. Her mother Ms Analise Lucas arrived in Australia on 11 May 2009. She became an Australian citizen on 16 December 2014.
Miss Lucas applied to the Department of Immigration for the visa on 30 August 2013. At the time her mother was a permanent resident.
The delegate refused to grant the visa on the basis that cl.101.213 was not met. In particular as Miss Lucas was over 18 at the time of the visa application, she needs to satisfy educational requirements. The delegate found that Miss Lucas had not been engaged in full time study from November 2009 until the second semester of 2010/11.
Hearing
The review applicant Ms Analise Lucas appeared before the tribunal on 20 April 2015 to give evidence and present arguments. The tribunal also received oral evidence from Miss Lucas. The tribunal hearing was conducted with the assistance of an interpreter in the Tagalog language.
Ms Lucas was represented by Ms Jancie Gounder.
The tribunal received a variety of material that where relevant will be referred to below.
Ms Analise Lucas’ evidence
Ms Lucas told the tribunal that she arrived in Australia on 9 May 2009 as a dependent of her ex-husband. When she arrived in Australia her husband was living in Brisbane. She went to live in Macquarie Fields and gave evidence of the effect that she and her husband had never cohabitated in Australia.
Ms Lucas indicated that her daughter Nica completed high school in 2007 and went straight to university to undertake a Bachelor of Science in computer science course on a full-time basis. She stated that her daughter is still studying and expects to complete her course in 2016. Ms Lucas indicated that her daughter has never been engaged, has never lived in a de facto relationship and has never been married. She also stated that her daughter has never worked. Ms Lucas also told the tribunal that her daughter has always been in good health.
Ms Lucas indicated that she has been the sole source of financial support for her daughter. She stated that the daughter does not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1407170 (Migration)

Details

AGLC: 1407170 (Migration) [2015] AATA 3120
Case: [2015] AATA 3120
Decision Date: 23 July 2015

CaseChat Overview and Summary

In the case of 1407170, the parties involved were the tribunal and Miss Lucas, a visa applicant. The dispute centred around Miss Lucas' eligibility for a Child (Migrant) (Class AH) visa under the subclass 101, specifically regarding her academic history and the application of certain criteria set out in the Migration Regulations. The matter was heard and determined by the tribunal.

The tribunal had to decide whether Miss Lucas met the educational requirements under cl.101.213 of the Regulations. This criterion requires that if an applicant has turned 18, they must be undertaking a full-time course of study at an educational institution leading to a professional, trade, or vocational qualification. The tribunal had to consider Miss Lucas' academic performance and her participation in courses between the second semester of 2009/10 and the first semester of 2011. The tribunal also needed to assess whether she was engaged in full-time work and whether she had a spouse or de facto partner.

The tribunal found that Miss Lucas was not engaged to be married, did not have a spouse or de facto partner, and was not involved in full-time work at the time of the visa application. However, the tribunal was concerned about her academic performance, noting that she had not passed most of the courses during the specified period and that her evidence regarding her studies was confusing and vague. Despite this, the tribunal concluded that Miss Lucas met the criteria under cl.101.211 as she was under 25 years of age and in a relevant child-parent relationship. Given these findings, the tribunal decided to remit the matter to the Minister for reconsideration of the remaining criteria for the visa.

In conclusion, the tribunal remitted the application for a Child (Migrant) (Class AH) visa for reconsideration, directing that Miss Lucas meets the criteria set out in cl.101.213 of the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The tribunal asked Miss Lucas about the academic transcript provided before the hearing. In particular, the tribunal asked about Miss Lucas’ studies from second semester 2009/10 until first semester 2011. Miss Lucas gave evidence to the effect that she attended and participated in all courses during this period of time. However, she did not pass most of the courses. Miss Lucas told the tribunal that the UW code refers to “unofficial withdrawal”. She stated that this was sometimes used by teachers for students who failed an exam so as to give the students a further opportunity to redo to the course without blemish on their record. The code “0.00” refers to where a student does not sit a final exam. However, Miss Lucas’ evidence on this point was somewhat confusing and vague and she also suggested that sometimes she did sit the final exam notwithstanding a 0.00 grade. At any rate, Miss Lucas stated that she usually attended all her classes in 2009 to 2011 period. However, she acknowledged that she was not concentrating during this period. Her mother had recently migrated to Australia.CONSIDERATION OF CLAIMS AND EVIDENCE The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a). There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the visa applicant has turned 18: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b). Miss Lucas was born on 31 January 1991 and turned 18 on 31 January 2009. The visa application was lodged on 30 August 2013. As Miss Lucas was over 18 at the time of the visa application she must satisfy educational requirements set out in cl.101.213:(1) If the applicant has turned 18:(a) the applicant:(i) is not engaged to be married; and(ii) does not have a spouse or de facto partner; and(iii) has never had a spouse or de facto partner; and(b) the applicant is not engaged in full-time work; and(c) subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. (2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. The tribunal accepts that at the time of the visa application Miss Lucas was not engaged, not married or not in a de facto relationship. The tribunal also accepts that at the time of the visa application she was not engaged in full time work.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.DECISION The tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:·cl.101.213 of Schedule 2 to the Regulations.Alan DuriMember

Ratio Decidendi

Legal Principle Established

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