Alcantara (Migration) - [2023] AATA 1940

Alcantara (Migration) [2023] AATA 1940 (16 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Bernadette Rino Alcantara
REPRESENTATIVE:  Ms Alfe Roder (MARN: 0746052)
CASE NUMBER:  2002983
HOME AFFAIRS REFERENCE(S):          CLF2019/7768
MEMBER:Peter Emmerton
DATE:16 May 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 16 May 2023 at 12:12pm
CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant had not been a continuous full-time student since turning 18 – applicant has turned 18 – have not studied for a period in excess of 4 years post turning 18 – a substantial break is not considered reasonable within the requirements set out in the relevant legislation – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 5 February 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 19 February 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.
The requirements of cl.802.214 (requirement to be met at time of application) are as follows.
(1) If the applicant has turned 18:
(a) the applicant:
(i) is not engaged to be married; and
(ii) does not have a spouse or de facto partner; and
(iii) has never had a spouse or de facto partner; and
(b) the applicant is not engaged in full-time work; and
(c) subject to subclause (2), the applicant has, 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.
(2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the
application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.
The delegate refused to grant the visa on the basis that cl 802.214(1)(c) and cl.802.214(2) were not met (requirement to be met at time of application). This was because 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 Alcantara (Migration)

Details

AGLC: Alcantara (Migration) [2023] AATA 1940
Case: [2023] AATA 1940
Decision Date: 16 May 2023

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, subclass 802, by Bernadette Rino Alcantara. The Administrative Appeals Tribunal (AAT) reviewed the delegate's decision to refuse the visa.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clauses 802.214(1)(c) and 802.214(2) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant, having turned 18, had maintained continuous full-time study as required by the legislation.

The Tribunal considered evidence including departmental notifications, letters from the applicant, financial transfers, and academic records. It noted that the applicant had not been a continuous full-time student since turning 18 and had experienced a period of study absence exceeding four years post-18. The Tribunal concluded that a substantial break in study was not considered reasonable within the legislative framework for this visa subclass.

Consequently, the Tribunal affirmed the delegate's decision, finding that the applicant did not meet the criteria for the grant of a Subclass 802 visa.

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 EVIDENCE The issue in the present case is whether or not the applicant meets the requirements of cl 802.214(1)(c) and cl.802.214(2). The Tribunal has reviewed and considered the following evidence presented to the delegate and the Department.·Department notification of refusal and decision, dated 5 February 2020·Letter from applicant to Department, dated 15 December 2019·Department personal particulars·Philippine Statistics Authority – certifying that records do not appear of birth, dated 27 November 2019·X6 Western Union money transfers, between 11 January 2017 and 19 September 2017 – totalling approximately AUD $1,096 if partially-legible docs read correctly·Statement of Yolanda Alcantara, dated 15 December 2019·Dept request for further information, dated 26 November 2019·Department notification of invalid application for a BT 802 visa, dated 11 February 2019·Letter from Norayada Rino Alcantara to Department, stamped by Department 20 February 2019·Evidence of travel in 2015·Payslip records for Norayada Rico, dated mainly 2018, with Jan 2019 listed·Letter of support from Rocco Comito, dated 30 March 2015·Tenancy Agreement of Rocco Comito and Christian Comito, 12 March 2015·Letter of support of Norayada Comito and Rocco Comito, dated 26 January 2019·Birth Certificate of Bernadette Rino Alcantara·Police clearance, employment details, academic records of Applicant·Further NAB Bank Statements of Western Union transfers Feb 2017 to Jan 2019 totalling AUD $9,537 The Tribunal has reviewed and considered the following evidence presented to it prior to the hearing.·Legal Submissions from Representative, dated 10 May 2023·Applicant Letter of Course Completion, Glen Institute, course completion of 19 February 2023·Applicant Confirmation of Enrolment (COE) - Certificate III in Commercial Cookery, 23 March 2020·Applicant Result Records, Glen Institute, issued 2 February 2023 ·Applicant Certificate III in Commercial Cookery, Glen Institute 19 February 2023·Applicant Confirmation of Enrolment (COE) - Certificate IV in Commercial Cookery, issued 15 February 2023·Philippine Statistics Authority, certifying that Bernadette Rino Alcantara does not appear in indices of marriages, as of 31October 2019 – Dated 27November 2019·Copies of Western Union money transfers – Already supplied on Department file as outlined above·Progress Report Card of Bernadette Alcantara, Saint Joseph Academy of Dasmarinas Inc. - 2012 – 2013·Passport biometric page of Bernadette AlcantaraCriteria 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).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

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.Peter EmmertonMember

Ratio Decidendi

Legal Principle Established

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