2013158 (Migration) - [2022] AATA 700

2013158 (Migration) [2022] AATA 700 (8 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2013158
MEMBER:Margie Bourke
DATE:8 March 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:
·cl.802.214 and cl.802.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 08 March 2022 at 12:23pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Student) – study requirements for child aged over 18 – full-time study since completing high school – college and university study in home country and Australia –18-month break in study – rare medical condition and genetic predisposition – surgery and ongoing monitoring for recurrence – physical and mental stress – study break spent regaining health and positivity, developing family relationships and inquiring about study and career options – entire period of study characterised as a whole – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 802.214, 802.221
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 11 August 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 11 February 2020. 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 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the time of application 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 was not satisfied that the applicant met the requirements of cl.802.214(1)(c) at the time of application because the applicant had not been a continuous full-time student since she turned 18.
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 and the nature of the review. The Tribunal considered that the conduct of the hearing by video would allow the applicant an opportunity to give evidence and present arguments, and would allow the Tribunal to…

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 2013158 (Migration)

Details

AGLC: 2013158 (Migration) [2022] AATA 700
Case: [2022] AATA 700
Decision Date: 8 March 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by an applicant who had turned 18 at the time of application. The applicant had completed secondary school in 2014 and pursued various full-time study courses in England and Australia, including a Bachelor of Arts degree completed in 2018. Following an 18-month break in her studies, the applicant enrolled in further tertiary education in Australia, commencing a Certificate IV course in February 2020, which she soon transitioned into a Bachelor of [Disciple 1] course, completed in December 2021. She was subsequently enrolled in a Master of [Specialisation 2] course. The applicant had a rare medical condition diagnosed in 2005, requiring lifelong surveillance and surgery in 2017, with further genetic testing in 2018 revealing a predisposition to transfer the condition to any children. The Tribunal was satisfied that the applicant met the relationship criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant had met the study requirements for a Subclass 802 visa, specifically concerning the period of study and any breaks therein, given her age at the time of application and decision. The Tribunal was required to consider the applicant's entire period of study as a whole, taking into account the reasons for any breaks in her education.

The Tribunal reasoned that the applicant's study history, while including an 18-month break, should be viewed in its entirety. This break was attributed to the applicant's rare medical condition, which necessitated surgery and ongoing monitoring, as well as the physical and mental stress associated with her health issues and genetic predisposition. During this period, the applicant focused on regaining her health, developing family relationships, and exploring study and career options. The Tribunal was satisfied that the applicant had provided sufficient documentation to support her academic achievements and current enrolment, and that the study requirements, when considered holistically, were met.

Consequently, the Tribunal remitted the application for a Child (Residence) (Class BT) visa, Subclass 802, for reconsideration by the Minister, with a direction that the applicant met the criteria specified in cl.802.214 and cl.802.221(2)(b) of Schedule 2 to the Regulations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 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). Based on the written and oral evidence provided to the Tribunal, the Tribunal is satisfied of the following. The applicant was born in England in [year], and was aged [age] years at the time of application, which was made on 11 February 2020. The applicant’s biological parents are separated and her mother resides in England and her father, the sponsor in this application, resides in Australia. The applicant completed her secondary school in England in June 2012 and completed her senior secondary school in June 2014. The Tribunal considered the Australian government UK Country Education Profiles a copy of which was provided by the applicant’s representative. The Tribunal is satisfied that the applicant’s senior secondary school, and the equivalent of year 12 in the Australian school system, was completed in 2014 when she undertook and completed year 12 and year 13 at [School] from June 2012 to June 2014. The applicant then undertook a one-year full-time course at the [Institution 1] which was completed in June 2015, and the applicant then studied a three-year full-time bachelor of arts degree, honours program, majoring in [Specialisation 1] at [University 1], England which was completed in June 2018. After a break of 18 months the applicant enrolled in a certificate IV [Disciple 1] course in TAFE in Australia in February 2020. Within two weeks the applicant transferred to the [Institution 2], to study a two-year full-time bachelor of [Disciple 1] course which was completed in December 2021, and the applicant is currently enrolled in an 18 month master of [Specialisation 2] course at [University 2], Victoria. The applicant provided to the Tribunal, documents in support of all her academic achievements and current enrolment. The applicant was diagnosed with a rare [medical condition] in 2005 when she was aged [age] years old. The diagnosis of the [medical condition], based on the medical reports provided to the Tribunal, involved lifelong surveillance for recurrent disease and the risk of further [incidents]. The applicant had [surgery] in 2017 when she was completing the last year of her bachelor of arts at [University 1]. In 2018, the applicant underwent tests which disclosed that she carried the gene which indicated her condition could be transferred to any children. The applicant provided several detailed medical reports in relation to all the operations and ongoing monitoring and testing of her condition to the Tribunal.Relationship status and history At the time of application, the applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.802.214(1)(a). This must continue to be the case at the time of this decision: cl.802.221(2)(b).

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 (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:·cl.802.214 and cl.802.221(2)(b) of Schedule 2 to the Regulations.Margie BourkeMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.