1416746 (Migration) - [2015] AATA 3951

1416746 (Migration) [2015] AATA 3951 (21 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs PAWEENA SRIMORA
VISA APPLICANTS:  Miss KANOKWAN PHICHAI
Miss PATWADEE PHICHAI
CASE NUMBER:  1416746
DIBP REFERENCE(S):  2013006428
MEMBER:Margie Bourke
DATE:21 December 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 101 (Child) visa:
·cl.101.213 and cl.101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 21 December 2015 at 2:51pm
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 6 August 2014 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied to the Department of Immigration for the visas on 15 July 2013. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).
The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.213(1)(c) and cl.101.221(2)(b) which require that the visa applicants are undertaking a full time course of study at an educational institution leading to the award a professional, trade or vocational qualification at the time of application and at the time of decision.
The delegate refused to grant the visas on the basis that cl.101.213 and cl.101.221 were not met because the delegate was not satisfied the visa applicants had been continuously engaged in full time study since they had turned 18.
The review applicant appeared before the Tribunal on 7 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the two visa applicants by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The main issues in this case is the two visa applicants had, since turning 18, or within six 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.
Criteria for dependent children applicants over 18
There are 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).
Relationship status

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.

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Details

Case: [2015] AATA 3951
Decision Date: 21 December 2015

CaseChat Overview and Summary

In the case of 1416746 (Migration), the parties involved are two visa applicants and their mother, the review applicant. The nature of the dispute pertains to the eligibility of the applicants for a Child (Migrant) (Class AH) visa under the Migration Regulations 1994. The matter was brought before the Tribunal for review.

The legal issues the court was required to decide pertain to the specific criteria outlined in cl.101.213 and cl.101.221(2)(b) of Schedule 2 to the Regulations. These criteria include the applicants' relationship status, their engagement in full-time work, and their educational pursuits. The primary focus was on whether the applicants met the prerequisites for a Subclass 101 (Child) visa, specifically in relation to their age, relationship status, employment, and study commitments.

The court found that the applicants met the criteria regarding their relationship status, as they were not engaged, married, or had a spouse or de facto partner at the time of application or decision. Additionally, the court determined that the applicants had not been engaged in full-time work. The applicants' father had not financially supported them for many years, and there was no evidence of employment income. Based on this, the court concluded that the applicants met the criteria at the time of application and continued to meet them at the time of decision. Consequently, the court decided to remit the matter to the Minister for reconsideration, with the direction that the applicants meet the remaining criteria for a Subclass 101 (Child) visa.

The final orders of the court were to remit the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the applicants meet the criteria outlined in cl.101.213 and cl.101.221(2)(b) of Schedule 2 to 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

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The main issues in this case is the two visa applicants had, since turning 18, or within six 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.Criteria for dependent children applicants over 18 There are 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).Relationship status At the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.101.213(1)(a). The review applicant stated that both of her daughters were neither engaged nor married nor had a de facto partner. The review applicant stated she was in contact with her daughters three times a week and if they have a problem she spoke to them every day. The review applicant stated that on the basis of her regular contact with her daughters she knew that they were not engaged or married or had a de facto partner. The visa applicants told the Tribunal that they lived with their maternal grandparents, aunt, uncle and cousin and each other. The visa applicants told the Tribunal that they had never been engaged or married or had a de facto partner. Based on the consistent and credible oral evidence before it, the Tribunal is satisfied that the two visa applicants were not engaged, married or had a partner at the time of application or at the time of decision, and have never had a spouse or de facto partner. Based on the consistent and credible oral evidence of the review applicant and the two visa applicants the Tribunal is satisfied that the two visa applicants have never been engaged, married or ever had a spouse or de facto partner. Accordingly, cl.101.213(1)(a) is met at the time of application, and continues to be met at the time of decision.Not engaged in full-time work At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b). The review applicant and the two visa applicant stated that the two visa applicants had never worked or earned money from employment. The oral evidence at the hearing was that the visa applicants’ father had not financially supported them for many years and the visa applicants had not had contact their father for a long time. The Tribunal has considered the evidence of the financial transfer receipts from the review applicant to the older visa applicant from 2012 to 2015. Based on the consistent and credible oral evidence and the written evidence the Tribunal is satisfied that neither of the visa applicants have been engaged in full time work at the time of application or at the time of decision.

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 applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 101 (Child) visa:·cl.101.213 and cl.101.221(2)(b) of Schedule 2 to the Regulations. Margie BourkeMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 Definitions…dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:(a)has not turned 18; or(b)has turned 18 and:(i)is dependent on that person; or(ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.1.05A Dependent(1)Subject to subregulation (2), a person (the first person) is dependent on another person if:(a)at the time when it is necessary to establish whether the first person is dependent on the other person:(i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and(ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions. …

Ratio Decidendi

Legal Principle Established

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