ALI (Migration) - [2023] AATA 3160

ALI (Migration) [2023] AATA 3160 (24 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr HUSSAIN ALI
VISA APPLICANT:  Miss MAHGUL AHMADI
REPRESENTATIVE:  Mr EHSAN AZADI (MARN: 1279450)
CASE NUMBER:  2301830
HOME AFFAIRS REFERENCE(S):          OSF2017018763
MEMBER:Andrew McLean Williams
DATE:24 September 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl 101.213 of Schedule 2 to the Regulations; and
·cl 101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 24 September 2023 at 4:09pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – full-time course of study – studies in Indonesia – equivalent of preparation for vocational qualification in Australia – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221
CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
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 January 2023 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The visa applicant had applied for the visa on 14 June 2017. 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). Relevantly to this case, they include clause 101.213 and clause 101.221(2)(b). Clause 101.213 requires that the Applicant not to be engaged, married, or in a de facto relationship, and not be in full-time work at the time the application was lodged. It also requires that the applicant demonstrate that at the time the application was lodged she was validly enrolled in, and actively participating in, a full-time post-secondary course of study leading to a professional, trade, or vocational qualification. Clause 101.221(2)(b), requires the applicant to continue to meet clause 101.213, as at the date of the decision regarding the visa application.
The visa applicant Ms Mahgul Ahmadi is a female citizen of Afghanistan, born on 6 March 1999, who was due to graduate from high school in Afghanistan November 2018. Before that could happen Mahgul fled Afghanistan in 2017 with her older sister because of the deteriorating security situation in that country caused by the Taliban having seized control of the country, whereupon she made her way as far as to a refugee camp in Indonesia.
In January 2018 Mahgul commenced a vocational course of study in the refugee camp, and has continued to study in Indonesia…

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.

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Details

AGLC: ALI (Migration) [2023] AATA 3160
Case: [2023] AATA 3160
Decision Date: 24 September 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of a visa applicant seeking a Child (Migrant) (Class AH) visa, Subclass 101 (Child). The primary dispute concerned whether the applicant, who was over 18 years of age at the time of application, met the specific criteria for this visa subclass, particularly in relation to her studies.

The legal issues before the Tribunal were whether the visa applicant satisfied the requirements of clause 101.213 of Schedule 2 to the Migration Regulations 1994, which pertains to applicants over 18 years of age. This included assessing whether the applicant was unmarried, not engaged in full-time work, and, crucially, whether she had 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 the equivalent of Year 12 in Australia. The Tribunal also had to consider whether these criteria continued to be met at the time of the decision, as stipulated by clause 101.221(2)(b).

The Tribunal reasoned that the applicant met the criteria relating to her relationship status and engagement in full-time work. Regarding the study requirement, the Tribunal found that the applicant, having fled Afghanistan due to safety concerns, commenced studies in Indonesia at a Refugee Learning Centre within a reasonable time after completing the equivalent of Year 12. The Tribunal was satisfied that the English language and computing courses undertaken were the equivalent of those leading to a vocational qualification in Australia. Applying the principles from *Hussain v MIBP* and *Opoku-Ware v MIBP*, the Tribunal concluded that the applicant had been undertaking relevant study and continued to be engaged in these studies at the time of the decision.

Consequently, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa, Subclass 101, for reconsideration. The Tribunal directed that the visa applicant met the criteria specified in clauses 101.213 and 101.221 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 this case is whether the visa applicant meets the requirements of clause 101.213.Criteria for applicants over 18 If, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl 101.213. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).Relationship status and history At the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl 101.213(1)(a). This must continue to be the case at the time of this decision: cl 101.221(2)(b). At the time of the visa application the visa applicant was unmarried and was not engaged to be married, and did not have a spouse or de-facto partner. Accordingly, clause 101.213(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 visa applicant must not be engaged in full-time work: cl 101.213(1)(b). This must continue to be the case at the time of this decision: cl 101.221(2)(b). At the time of the visa application the visa applicant was not engaged in full-time work and is not now engaged in full-time work. Accordingly, cl 101.213(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 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: cl 101.213(1)(c). Where cl 101.213(1)(c) applies, it must continue to be met at the time of decision: cl 101.221(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 visa applicant fled Afghanistan shortly after her completing high school due to a worsening security situation - particularly for females - in consequence of control over Afghanistan by the Taliban. Very shortly after her arrival in Indonesia and her reception into a refugee camp in January 2018 the Applicant commenced a course of study at the Refugee Learning Centre. The Applicant appears to have taken every opportunity open to her to continue with her education, notwithstanding the limited opportunities open to her in Indonesia as a refugee awaiting processing. There is now evidence before the Tribunal in the form of a letter from the Refugee Learning Centre dated 11 September 2023 to certify that the visa applicant is enrolled as a full-time student in English language and computing courses. In the circumstances of her having fled Afghanistan for reasons of safety, the Tribunal is satisfied that the visa applicant commenced her studies in Indonesia ‘within a reasonable period’ after completing the equivalent of year 12 in Australia, and in a course that is the equivalent of one that would lead to a vocational qualification in Australia, and is also satisfied that the visa applicant continues to be engaged in these studies and to meet the requirement in clause 101.213(1)(c) as at the date of this decision.

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 (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:·cl 101.213 of Schedule 2 to the Regulations; and·cl 101.221 of Schedule 2 to the Regulations.Andrew McLean WilliamsMember

Ratio Decidendi

Legal Principle Established

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