1902206 (Migration) - [2021] AATA 4085

1902206 (Migration) [2021] AATA 4085 (20 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1902206

MEMBER:Margie Bourke
DATE:20 September 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 20 September 2021 at 1:38pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – visa applicant over 18 years – full-time study – dependent child – applicant withdrew from studies – family bereavement – employment – referral for Ministerial Intervention – compassionate circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 802.214, 802.223; r 1.03
CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 Home Affairs on 29 January 2019 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 3 January 2018. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).
The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.214.
The delegate refused to grant the visa on the basis that cl.802.214 was not met because the delegate found the applicant was over 18 years of age and not enrolled in and participating in full-time education and therefore did not satisfy cl.802.214(1)(c), and further the delegate was not satisfied that the applicant met the definition of dependent child in subparagraph (b)(ii), and therefore did not satisfy the alternative cl.802.214(2).
The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the applicant, the nature of the review, and the restrictions on in-person hearings caused by the pandemic. The Tribunal considered that this review did not involve large amounts of paperwork being put to the applicant. The Tribunal considered that the conduct of the hearing by video would give the applicant the opportunity to give evidence and present arguments, and the conduct of the hearing by video would allow the Tribunal to conduct a fair and effective hearing and enable the Tribunal to assess the credibility of the applicant. The…

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 1902206 (Migration)

Details

AGLC: 1902206 (Migration) [2021] AATA 4085
Case: [2021] AATA 4085
Decision Date: 20 September 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of a child visa applicant who had turned 18 and was seeking a Child (Residence) (Class BT) visa, Subclass 802. The applicant had previously been enrolled in full-time study but had withdrawn from her courses. The dispute centred on whether the applicant continued to meet the specific criteria for the visa after turning 18, particularly concerning her study commitments.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 802.214 of the Migration Regulations 1994, which stipulates that applicants over 18 must have been undertaking a full-time course of study leading to a professional, trade, or vocational qualification, and that this requirement must continue to be met at the time of the decision, as per clause 802.221(2)(b). The Tribunal also considered the interpretation of "reasonable time" for commencing study after completing Year 12 and the requirement for the applicant to be studying at the time of the decision.

The Tribunal reasoned that while the applicant had completed Year 12 and initially enrolled in tertiary studies, she had withdrawn from her courses in 2012 and again in early 2015. The Tribunal noted that the applicant had not provided any documentation to support her claims of withdrawing due to her brother's ill-health or her subsequent employment. Crucially, the Tribunal found that the applicant was not undertaking full-time study at the time of the decision, a requirement for applicants over 18 under clause 802.221(2)(b). Applying the principles from cases such as *Sok v MIMIA* and *Hussain v MIBP*, the Tribunal concluded that the applicant's conduct, characterised as a whole, did not demonstrate that she had been undertaking the required study.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa, Subclass 802, as the criteria were not met. However, the Tribunal considered that strong compassionate circumstances existed, including the family's bereavement of their only other child to cancer in 2017, and recommended the matter for the Minister's consideration under section 351 of the Migration Act 1958.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCECriteria for applicants over 18 If, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl.802.214. These requirements must continue to be met at the time of decision: cl.802.221(2)(b).Full-time study (or incapacitated for work) At the time of application, the applicant must have, 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: cl.802.214(1)(c). This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]-[16]. In determining what is a ‘reasonable time’ for cl.802.214(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl.802.214(2). Where cl.802.214(1)(c) applies, it must continue to be met at the time of decision: cl.802.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416. The applicant had not provided any documents or submissions to the Tribunal. The Tribunal did have available the documents and submissions that had been provided to the Department. The applicant gave evidence that she turned 18 in March 2011, and that she had completed year 12 in the Australian school system in December 2011, and provided her graduation certificate to the Department. The applicant gave evidence that she had enrolled in a [tertiary] course the following year but had withdrawn from the course in September 2012. The applicant gave evidence that she did not study in 2013 due to the ill-health of her brother. The applicant gave evidence that she completed a Certificate IV in [subject 1] in 2014, and commenced a diploma in [subject 1] in 2015 but withdrew from the course in early 2015.

Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).DECISION The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.Ministerial intervention The Tribunal considers that strong compassionate circumstances exist that are suitable for this matter to be recommended to the Minister for his consideration under s.351 of the Act. The Tribunal considers that serious and continuing harm would be caused to an Australian family unit, namely the parents of the applicant, who lost their only other child to cancer in 2017. Margie BourkeMember

Ratio Decidendi

Legal Principle Established

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