Abenoja (Migration) - [2022] AATA 2278

Abenoja (Migration) [2022] AATA 2278 (19 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Jabel Balbarona Abenoja
REPRESENTATIVE:  Mr Ayush Rayamajhi (MARN: 1462368)
CASE NUMBER:  2015424
HOME AFFAIRS REFERENCE(S):          CLF2019/36811
MEMBER:David Crawshay
DATE:19 May 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 of Schedule 2 to the Regulations; and
·cl.802.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 19 May 2022 at 11:36am
CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant had turned 18 at the time of application – applicant commenced undertaking the requisite study within a reasonable time after completing the equivalent of year 12 in the Australian school system – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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

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 September 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 25 September 2019. 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 criteria to be met in this case include cl.802.214, which require the applicant to satisfy certain criteria related to work and study, as well as not be in certain categories of relationship.
The delegate refused to grant the visa on the basis that cl.802.214 was not met because the delegate found that the applicant was over 18 years of age and was not a full-time student at the time the application was lodged. A copy of the decision record was provided to the Tribunal by the applicant.
The applicant appeared before the Tribunal on 9 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and from the applicant’s aunt, Ms Generosa Abuyan.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies certain criteria for applicants aged 18 years or over relating to post-secondary studies under cl.802.214(1)(c).
Criteria for applicants…

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 Abenoja (Migration)

Details

AGLC: Abenoja (Migration) [2022] AATA 2278
Case: [2022] AATA 2278
Decision Date: 19 May 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, before the Tribunal. The applicant had turned 18 at the time of lodging her application. The core of the dispute revolved around whether the applicant met specific criteria for applicants over 18, particularly those relating to post-secondary studies.

The Tribunal was required to determine if the applicant satisfied the criteria under cl.802.214(1)(c) of the Migration Regulations 1994. This clause mandates that applicants aged 18 or over must have, since turning 18 or within a reasonable time after completing the equivalent of Year 12 in the Australian school system, commenced undertaking a full-time course of study leading to a professional, trade, or vocational qualification. The Tribunal also had to consider whether this criterion, along with others, continued to be met at the time of the decision, as per cl.802.221(2)(b).

The Tribunal found that the applicant met the criteria under cl.802.214(1)(a) and (b), relating to not being engaged to be married or in a de facto relationship, and not being engaged in full-time work, respectively. Crucially, the Tribunal accepted evidence that the applicant commenced undertaking the requisite full-time study within a reasonable time after completing the equivalent of Year 12. In determining what constituted a "reasonable time," the Tribunal considered the surrounding circumstances, drawing on principles from *Sok v MIMIA* [2005] FMCA 190.

Consequently, the Tribunal remitted the application 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

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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 issue in the present case is whether the applicant satisfies certain criteria for applicants aged 18 years or over relating to post-secondary studies under cl.802.214(1)(c).Criteria for applicants over 18 The evidence in front of the Tribunal, which it accepts, is that the applicant had turned 18 at the time of application. This being the case, she needs to meet certain requirements relating to relationships, work and study: cl.802.214, and these requirements must continue to be met at the time of decision: cl.802.221(2)(b).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). There is no evidence to demonstrate that the applicant has ever been married or engaged to be married, or has been in a de facto relationship. Accordingly, cl.802.214(1)(a) is met. It continues to be met at the time of decision.Not engaged in full-time work At the time of application, the applicant must not be engaged in full-time work: cl 802.214(1)(b). This must continue to be the case at the time of this decision: cl 802.221(2)(b). There is no evidence in front of the Tribunal that she has been engaged in full-time work at any material time. Accordingly, cl.802.214(1)(b) is met. It continues to be met at the time of decision.Full-time study (or incapacitated for work) At the time of application, the applicant must have, 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: 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). There is no evidence that the applicant suffered from such incapacity, and cl.802.214(2) is not applicable.

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 of Schedule 2 to the Regulations; and·cl.802.221(2)(b) of Schedule 2 to the Regulations.David CrawshayMember

Ratio Decidendi

Legal Principle Established

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