Bajora (Migration) - [2024] AATA 3193

Bajora (Migration) [2024] AATA 3193 (7 August 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division
APPLICANT:  Ms Wellane Bato Bajora
CASE NUMBER:  2110289
HOME AFFAIRS REFERENCE(S):           BCC2021/529740
MEMBER:  Peter Emmerton
DATE:  7 August 2024
PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 07 August 2024 at 1:01pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – ‘dependent child’ – applicants over 18 – relationship status and history – not engaged in full-time work – full-time study (or incapacitated for work) – study gaps – reasonableness of break in study – financial challenges – caring responsibilities – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 802.214
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 22 July 2021 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 9 April 2021. 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).
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), subsequently therefore cl 802.214 was not met because the applicant had not been a full-time student since turning 18. In addition, cl 802.214(2) was not met because…

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 Bajora (Migration)

Details

AGLC: Bajora (Migration) [2024] AATA 3193
Case: [2024] AATA 3193
Decision Date: 7 August 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application of the applicants for a Child (Residence) (Class BT) visa, Subclass 802. The applicants, who were over 18 years of age, sought to establish that they met the definition of a 'dependent child' for the purposes of the visa. The core of the dispute revolved around whether the applicants' circumstances, including their relationship status, history, lack of full-time work, and periods of study, satisfied the criteria for dependency.

The Tribunal was required to determine whether the applicants were 'dependent children' as defined by the Migration Regulations. Specifically, the AAT had to assess whether the applicants were either undertaking full-time study or were incapacitated for work. A key aspect of this determination involved examining the reasonableness of any breaks in their full-time study, considering factors such as financial challenges and caring responsibilities.

In its reasoning, the Tribunal applied the relevant provisions of the Migration Regulations concerning the definition of a dependent child. It considered the applicants' evidence regarding their study history, including any gaps, and evaluated whether these breaks were reasonable in light of their stated financial difficulties and family obligations. The Tribunal's assessment focused on whether, despite these interruptions, the applicants could still be considered to be undertaking full-time study or were incapacitated for work, thereby fulfilling the dependency requirement. The Tribunal affirmed the decision under review.

Orders