Arizza (Migration) - [2019] AATA 2675

Arizza (Migration) [2019] AATA 2675 (27 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Indira Gozwan Arizza
CASE NUMBER:  1728929
HOME AFFAIRS REFERENCE(S):           CLF2017/13892
MEMBER:Jane Marquard
DATE:27 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 27 June 2019 at 9:14am
CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant has turned 18– full-time study requirements not met– decision under review affirmed
LEGISLATION
Acts Interpretation Act, Cth, s 15AA
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 802.214, 802.216, 802.221, 802.226

CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
Veljanovski v Minister for Home Affairs [2019] FCCA 502
Waensila v MIBP [2016] FCAFC 32
Wake v MIAC [2010] FMCA 272
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 Immigration and Border Protection (the Department) on 31 October 2017 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is from Indonesia. She is aged 19 and the sponsor in Australia is her mother. Her mother and father are Australian permanent residents and have been in Australia since 8 March 2009.
The applicant applied for the visa on 6 February 2017. 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 (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. This clause provides that if the applicant has turned 18, which is the case here, the applicant must be single, 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 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.
Extracts of the relevant provisions are set out in Attachment A.
The delegate refused to grant the visa on the basis that cl.802.214 was not met because the applicant was not participating in full-time education when the application was lodged.
The applicant appeared before the Tribunal on 21 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor by video from Cairns. Following the hearing the applicant was granted time to provide further submissions. The applicant was represented in relation to 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 Arizza (Migration)

Details

AGLC: Arizza (Migration) [2019] AATA 2675
Case: [2019] AATA 2675
Decision Date: 27 June 2019

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, by an applicant who had turned 18 prior to the date of application. The applicant’s birth certificate indicated she was born on 3 February 1999, making her 18 years old at the time of her application on 6 February 2017. The Administrative Appeals Tribunal, constituted by Member Jane Marquard, was required to determine whether the applicant met the criteria for the visa subclass.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 802.214 of the Migration Regulations 1994, which sets out the requirements for applicants who have turned 18 at the time of application. Specifically, the Tribunal had to consider the elements relating to relationship status, engagement in full-time work, and undertaking a full-time course of study. These criteria, as set out in clause 802.214, must also continue to be met at the time of the decision, as per clause 802.221(2)(b).

The Tribunal found that the applicant met the criteria regarding her relationship status and engagement in full-time work, as she confirmed she had never been married or in a de facto relationship, nor had she ever worked. However, the Tribunal determined that the applicant failed to meet the criterion in clause 802.214(1)(c), which requires that an applicant, since turning 18, has been undertaking a full-time course of study leading to a professional, trade, or vocational qualification. The applicant had not provided evidence of undertaking such a course.

Consequently, the Tribunal concluded that the applicant did not meet the criteria for the grant of a Subclass 802 visa. The Tribunal affirmed the decision not to grant the applicant the 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 applicant has provided a copy of her birth certificate which indicates that she was born on 3 February 1999. Thus, at the date of application, 6 February 2017, she was three days over the age of 18. The issue in the present case is therefore whether the applicant meets Clause 802.214. Elements of this clause are set out below.Criteria for applicants over 18 If, at the time of application, the applicant has turned 18, an applicant needs 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). All aspects of the criterion set out below must be satisfied to meet the criterion. 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). The applicant confirmed that she had never had a partner or been married, and the delegate was satisfied that she met cl.802.214(a). At the Tribunal hearing it was confirmed that she does not have a partner and is not married, and the Tribunal is so satisfied. Accordingly, cl.802.214(1)(a) and (802.221(2)(b) are met. 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). In her application, the applicant confirmed that she had never worked, and the delegate of the Department was satisfied that she met cl. 802.214(1)(b). At the Tribunal hearing, it was confirmed that she had never worked, and the Tribunal is satisfied as such. Accordingly, cl.802.214(1)(b) and cl.802.221(2)(b) are met.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]. 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).

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.Jane MarquardMemberAttachment A – extracts of relevant provisions802.21—Criteria to be satisfied at time of applicationVarious then…802.214(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 orvocational qualification.(2) Paragraph (1)(c) does not apply to an applicant who, at the time ofmaking the application, is a dependent child within the meaning ofsubparagraph (b)(ii) of the definition of dependent child.802.22 – Criteria to be satisfied at time of decision802.221 (1) In the case of an applicant who had not turned 18 at the time of application, the applicant: (a) continues to satisfy the criterion in clause 802.212; or (b) does not continue to satisfy that criterion only because the applicant has turned 18. (2) In the case of an applicant who had turned 18 at the time of application: (a) the applicant: (i) continues to satisfy the criterion in clause 802.212;

Ratio Decidendi

Legal Principle Established

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