2207760 (Migration) - [2023] AATA 3230

2207760 (Migration) [2023] AATA 3230 (25 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2207760
MEMBER:Jane Marquard
DATE:25 July 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 101 (Child) visa:
·cl 101.213(1)(c) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations; and
·cl 101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 25 July 2023 at 2:50pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – young adult children of permanent residents – dependency – study requirement – full-time courses since turning 18 or completing high school – schooling in home country disrupted and applicants seeking refuge in third country – need to complete high school before further study – school closed for some time because of COVID pandemic – letters from schools in third and home countries provided – interpretation that would best achieve purpose of provisions – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213(1)(c), 101.221(2)(b)
Acts Interpretation Act 1901 (Cth), s 15AA
CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
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 13 April 2022 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO REVIEW
The visa applicants are three young men from Lebanon, currently residing in [Country].
[The first visa applicant] is currently aged [Age] (born [Date]).
[The second visa applicant] is currently aged [Age] (born [Date]).
[The third visa applicant] is currently aged [Age] (born [Date]).
The review applicant (their sponsor) is their father, [Mr A], who arrived in Australia in 2013. He and his wife, [Ms B] are Australian permanent residents. They have two younger children who arrived in Australia [in] December 2022.
The visa applicants applied for the visas on 25 June 2021.
RELEVANT LAW
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 (Cth) (the Regulations).
There are specific requirements for children over the age of 18. Relevantly to this case, cl 101.213(1)(c) of the Regulations requires that at the time of application, the visa applicant must have, since turning 18, or…

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 2207760 (Migration)

Details

AGLC: 2207760 (Migration) [2023] AATA 3230
Case: [2023] AATA 3230
Decision Date: 25 July 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse Child (Migrant) (Class AH) visas under Subclass 101 to three young men from Lebanon. The applicants' father, an Australian permanent resident, was the sponsor. The delegate's refusal was based on the applicants not meeting the study requirements stipulated in clause 101.213(1)(c) of the Migration Regulations 1994 (Cth), which mandates that applicants over 18 must have been undertaking a full-time course of study leading to a professional, trade, or vocational qualification since turning 18 or within a reasonable time after completing Year 12.

The primary legal issue before the Tribunal was whether the visa applicants had satisfied the study requirement under cl 101.213(1)(c) of the Regulations, and whether this requirement continued to be met at the time of the decision as per cl 101.221(2)(b). The delegate was not satisfied that the applicants had met this criterion, leading to the refusal. The Tribunal considered evidence provided by the Department, as well as oral and documentary evidence presented during the review process, including information about the applicants' schooling in their home country and their subsequent enrolment in courses in a third country, which was impacted by disruptions including the COVID-19 pandemic.

The Tribunal found that the matter should be remitted for reconsideration. While the delegate had refused the applications based on a lack of satisfaction regarding the study requirements, the Tribunal considered the context of the applicants' disrupted schooling and their efforts to continue their education. The Tribunal indicated that an interpretation of the provisions that best achieves the purpose of the legislation should be applied, particularly in circumstances where schooling was interrupted and the applicants were seeking refuge. The Tribunal concluded that a decision could not be made on the papers without further consideration, and therefore remitted the matter for reconsideration by the delegate.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 April 2022 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND TO REVIEW The visa applicants are three young men from Lebanon, currently residing in [Country]. [The first visa applicant] is currently aged [Age] (born [Date]). [The second visa applicant] is currently aged [Age] (born [Date]). [The third visa applicant] is currently aged [Age] (born [Date]). The review applicant (their sponsor) is their father, [Mr A], who arrived in Australia in 2013. He and his wife, [Ms B] are Australian permanent residents. They have two younger children who arrived in Australia [in] December 2022. The visa applicants applied for the visas on 25 June 2021. RELEVANT LAW 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 (Cth) (the Regulations). There are specific requirements for children over the age of 18. Relevantly to this case, cl 101.213(1)(c) of the Regulations requires that at the time of application, the visa 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. These requirements must continue to be met at the time of decision: cl 101.221(2)(b) of the Regulations.DECISION OF THE DEPARTMENT OF HOME AFFAIRS (DEPARTMENT) The delegate of the Department refused to grant the visas on the basis that cl 101.213(1)(c) was not met because the delegate was not satisfied that the applicants had 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.EVIDENCE CONSIDERED IN THIS REVIEW The Tribunal has taken into consideration evidence in the Department files as well as oral evidence and documents provided to this Tribunal. A list of documents is set out in Attachment A. On 29 June 2023 the Tribunal wrote to the review applicant to invite him to a Case Management Hearing on Tuesday 11 July 2023 to discuss the evidence required for the hearing. The Tribunal stated in the letter:.. the legislation requires that at the time of application for the visa, where applicants have turned 18:·he or she must not be engaged to marry or have/had a partner,·must not be engaged in full-time work and,·since turning 18, or within 6 months or a reasonable time after completing the equivalent of Year 12, must have been undertaking a full-time course leading to the award of a professional, trade, or vocational qualification.As you will be aware, the delegate of the Department of Home Affairs refused the applications because the delegate was not satisfied that the children since turning 18, or within 6 months or a reasonable time after completing the equivalent of Year 12, had been undertaking a full-time course leading to the award of a professional, trade ,or vocational qualification.You have provided some documents indicating enrolment in courses from 1 June 2021 to 25 March 2022. The Tribunal invites you to provide evidence that:·Each of the children have since turning 18 or within 6 months or a reasonable time after completing the equivalent of year 12, been studying.·They are still studying (given that the end dates for courses were 25 March 2022).·The courses are full-time.·The courses are leading to the award of a professional, trade or vocational qualification.·They are not engaged to marry or have partners.’·They are not engaged in full-time workThis evidence can be obtained through statements from the children or others, and documents showing they are studying from university and colleges.

Evidence

Evidence Before The Court

The delegate of the Department refused to grant the visas on the basis that cl 101.213(1)(c) was not met because the delegate was not satisfied that the applicants had 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.EVIDENCE CONSIDERED IN THIS REVIEW The Tribunal has taken into consideration evidence in the Department files as well as oral evidence and documents provided to this Tribunal. A list of documents is set out in Attachment A. On 29 June 2023 the Tribunal wrote to the review applicant to invite him to a Case Management Hearing on Tuesday 11 July 2023 to discuss the evidence required for the hearing. The Tribunal stated in the letter:.. the legislation requires that at the time of application for the visa, where applicants have turned 18:·he or she must not be engaged to marry or have/had a partner,·must not be engaged in full-time work and,·since turning 18, or within 6 months or a reasonable time after completing the equivalent of Year 12, must have been undertaking a full-time course leading to the award of a professional, trade, or vocational qualification.As you will be aware, the delegate of the Department of Home Affairs refused the applications because the delegate was not satisfied that the children since turning 18, or within 6 months or a reasonable time after completing the equivalent of Year 12, had been undertaking a full-time course leading to the award of a professional, trade ,or vocational qualification.You have provided some documents indicating enrolment in courses from 1 June 2021 to 25 March 2022. The Tribunal invites you to provide evidence that:·Each of the children have since turning 18 or within 6 months or a reasonable time after completing the equivalent of year 12, been studying.·They are still studying (given that the end dates for courses were 25 March 2022).·The courses are full-time.·The courses are leading to the award of a professional, trade or vocational qualification.·They are not engaged to marry or have partners.’·They are not engaged in full-time workThis evidence can be obtained through statements from the children or others, and documents showing they are studying from university and colleges. The review applicant and his wife appeared at the Case Management Hearing on Tuesday 10 July 2023. The Tribunal provided a timetable for provision of evidence. The parents of the visa applicants said that they would provide updated information which they did shortly thereafter. No hearing was necessary in this matter as the Tribunal was able to find in favour of the visa applicant on the papers provided, pursuant to s 360(2)(a) of the Act.FINDINGS AND REASONS For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Criteria for applicants over 18

Decision

Reasons for decision

There are specific requirements for children over the age of 18. Relevantly to this case, cl 101.213(1)(c) of the Regulations requires that at the time of application, the visa 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. These requirements must continue to be met at the time of decision: cl 101.221(2)(b) of the Regulations.DECISION OF THE DEPARTMENT OF HOME AFFAIRS (DEPARTMENT) The delegate of the Department refused to grant the visas on the basis that cl 101.213(1)(c) was not met because the delegate was not satisfied that the applicants had 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.EVIDENCE CONSIDERED IN THIS REVIEW The Tribunal has taken into consideration evidence in the Department files as well as oral evidence and documents provided to this Tribunal. A list of documents is set out in Attachment A. On 29 June 2023 the Tribunal wrote to the review applicant to invite him to a Case Management Hearing on Tuesday 11 July 2023 to discuss the evidence required for the hearing. The Tribunal stated in the letter:.. the legislation requires that at the time of application for the visa, where applicants have turned 18:·he or she must not be engaged to marry or have/had a partner,·must not be engaged in full-time work and,·since turning 18, or within 6 months or a reasonable time after completing the equivalent of Year 12, must have been undertaking a full-time course leading to the award of a professional, trade, or vocational qualification.As you will be aware, the delegate of the Department of Home Affairs refused the applications because the delegate was not satisfied that the children since turning 18, or within 6 months or a reasonable time after completing the equivalent of Year 12, had been undertaking a full-time course leading to the award of a professional, trade ,or vocational qualification.You have provided some documents indicating enrolment in courses from 1 June 2021 to 25 March 2022. The Tribunal invites you to provide evidence that:·Each of the children have since turning 18 or within 6 months or a reasonable time after completing the equivalent of year 12, been studying.·They are still studying (given that the end dates for courses were 25 March 2022).·The courses are full-time.·The courses are leading to the award of a professional, trade or vocational qualification.·They are not engaged to marry or have partners.’·They are not engaged in full-time workThis evidence can be obtained through statements from the children or others, and documents showing they are studying from university and colleges.

Ratio Decidendi

Legal Principle Established

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