Amida (Migration) - [2022] AATA 1589

Amida (Migration) [2022] AATA 1589 (28 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Lester Amida
REPRESENTATIVE:  Mrs Daniela Annemarie Ion (MARN: 1792307)
CASE NUMBER:  2005586
HOME AFFAIRS REFERENCE(S):          CLF2019/18835
MEMBER:Maxina Martellotta
DATE:28 February 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 28 February 2022 at 8:13am
CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant has turned 18 – at the time of visa application the applicant was not engaged in a course of full-time study –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, cls 802.214, 802.221

CASES
Huynh v MIMA [2006] FCAFC 122
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 7 March 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 April 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 (1) (c) and 802.221 of the Act.
The delegate refused to grant the visa on the basis that cl 802.214 (1) (c) and 802.221 were not satisfied.
Background
The applicant was invited to attend a hearing on 20 December 2021. On 13 December 2021 request made by his representative to defer the hearing date to allow additional time to obtain documents was granted. The hearing was rescheduled to 4 February 2022. A further request to defer the hearing was received on 11 January 2022 but on this occasion, it was not granted. The hearing method was changed with the applicant’s consent from in person to conference video due to the COVID-19 pandemic and the increase in community spread of the infection.
On 4 February 2022 the tribunal convened a hearing however after about 30 minutes it became apparent that due to poor audio quality the hearing could not proceed. The tribunal with the consent of the applicant deferred the hearing to 11 February 2022 on which date the hearing proceeded.
The hearing on 11 February 2022 took place by conference video. As noted, the Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19…

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 Amida (Migration)

Details

AGLC: Amida (Migration) [2022] AATA 1589
Case: [2022] AATA 1589
Decision Date: 28 February 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, before the Tribunal. The applicant, who had turned 18 at the time of the application, sought to have a decision not to grant the visa reviewed. The core of the dispute revolved around whether the applicant met the specific study requirements stipulated for applicants over the age of 18.

The Tribunal was required to determine if the applicant satisfied the criteria for a Subclass 802 visa, particularly focusing on the requirement that applicants over 18 must have been undertaking a full-time course of study since turning 18, or within a reasonable time after completing the equivalent of Year 12, leading to a professional, trade, or vocational qualification. This requirement, along with others relating to relationship status and full-time work, needed to be met at the time of application and continue to be met at the time of the decision.

The Tribunal found that while the applicant met the criteria regarding relationship status and not being engaged in full-time work, they failed to satisfy the full-time study requirement. The evidence indicated that the applicant was 21 years old at the time of application and had not been engaged in a full-time course of study as required by clause 802.214(1)(c) of the Migration Regulations. The Tribunal applied the principles from cases such as *Sok v MIMIA* and *Hussain v MIBP*, which clarify the interpretation of "reasonable time" and the continuous nature of study required.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa, Subclass 802, as the criteria for the visa were not met.

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 the applicant satisfies the study requirements at the at the time of application.Criteria 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). In this matter the tribunal is satisfied that at the time of making his application the applicant was 21 years of age.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). At hearing the applicant confirmed and the tribunal finds that he is not engaged to be married and does not or ever had a spouse or defacto partner. 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). At hearing the applicant confirmed and the tribunal finds that at the time of application he was not engaged in full time work. 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 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 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). Where cl 802.214(1)(c) applies, it must continue to be met at the time of decision: cl 802.221(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.

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.Maxina MartellottaMember

Ratio Decidendi

Legal Principle Established

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