Basilone (Migration) - [2025] ARTA 524

BASILONE (MIGRATION) [2025] ARTA 524 (9 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Serena Basilone
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2101191

Tribunal:Senior Member M Bourke
Place:Melbourne
Date: 9 January 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 09 January 2025 at 4:10pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – aged over 18 – study requirements at time of decision – practical training as part of employment, not full-time course at educational institution – delay in finalisation of review – possibility of applying for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 802.214(1)(c), 802.221(2)(b)
CASES
Opoku-Ware v Minister for Immigration [2015] FCCA 1638
Wake v Minister for Immigration [2010] FMCA 272
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 January 2021 to refuse to grant the visa applicant a Child (Residence) (Class BT) Subclass 802 visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 17 July 2020. The delegate refused to grant the visa on the basis that did not meet the study requirements for applicants aged over 18 at the time of application in cl.802.214(1)(c).
The applicant was originally invited to an in-person hearing scheduled for 19 December 2024. The applicant’s representative was attending from Italy and a link was included for the representative to attend the hearing by video. This hearing was postponed due to a delay in the processing of a FOI request the applicant had made to the Department.
The hearing was rescheduled for 9 January 2025. The second hearing invitation invited all participants to attend by video. The presiding member had intended the applicant be again invited to attend the hearing in person. At the commencement of the video hearing, the applicant was advised if she wished to attend the hearing in person, the hearing could be postponed and an in-person hearing be scheduled. The applicant and her representative stated they wished the hearing to proceed by way of video on 9 January 2025.
The Tribunal is satisfied that its objectives to provide an independent mechanism of review that is fair and just, and ensures the application for review was resolved quickly, with little formality and expense, and that the Tribunal could give a proper consideration of the matters before it, could be achieved by way of the hearing proceeding by way of video. The Tribunal was further satisfied that the hearing proceeding by video as requested by the applicant ensured the hearing was accessible and responsive to the needs of the parties, and allowed transparency and trust in the hearing process and decision-making of the Tribunal.
The applicant appeared before the Tribunal by video on…

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 Basilone (Migration)

Details

AGLC: Basilone (Migration) [2025] ARTA 524
Case: [2025] ARTA 524
Decision Date: 9 January 2025

CaseChat Overview and Summary

The case of Basilone (Migration) involved an application for a Child (Residence) (Class BT) visa, specifically a Subclass 802 visa, for an individual who had turned 18 at the time of the application. The primary issue before the Tribunal was whether the applicant met the criteria outlined in cl.802.221(2)(b) of the Migration Regulations, which requires that the applicant continue to satisfy the criterion in cl.802.214. This included the requirement to be undertaking a full-time course of study at an educational institution at the time of the decision.

The Tribunal examined the evidence provided by the applicant, including written submissions, evidence of completed courses of study, financial support from the applicant's father, and letters from employers. The Tribunal also considered oral evidence from the applicant and her employer. The Tribunal found that the applicant was not undertaking a full-time course of study at an educational institution but was instead receiving practical training as part of her employment at Myofitness. Based on the principles from the judgement in Opoku-Ware v Minister for Immigration and Anor, the Tribunal determined that for the applicant to meet the requirements of cl.802.221(2)(b), she must be undertaking a full-time course of study at an educational institution at the time of the decision.

The Tribunal affirmed the decision not to grant the applicant a Child (Resident) (Class BT) visa, as it was not satisfied that the applicant met the requirements of cl.802.221(2)(b). The Tribunal also discussed the possibility of ministerial intervention due to the significant delay in finalising the review of the application, partially caused by the backlog created by the pandemic. However, no request for ministerial intervention was made by the applicant or her representative.

The Tribunal's decision was based on its determination that the applicant did not meet the necessary criteria for the visa, and the delay in the process did not warrant a different outcome. The Tribunal's decision was thus affirmed, and the application for the visa was denied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Cl.802.221(2)(b) requires in the case of an applicant who had turned 18 at the time of application, the applicant continues to satisfy the criterion in cl.802.214.Information and evidence provided by the applicant The applicant provided written information and evidence to the Tribunal prior to the hearing including submissions, evidence of completed full-time courses of study and short courses, evidence of financial support from her father, and letters from previous and current employers. The Tribunal has also considered the oral evidence before it. The applicant and her representative stated that there are no claims that the applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions. There is no evidence before the Tribunal that the applicant is incapacitated for work. The Tribunal is satisfied that the applicant is not a dependent child within the meaning of reg 1.03(b)(ii). The Tribunal therefore is satisfied that the requirements of cl.802.214(1)(c) apply to the applicant. In the submissions from the applicant’s representative, the representative stated that the applicant has pursued practical training at Myofitness from June 2024 until the present time. The applicant provided a letter from her employer at Myofitness dated 27 December 2024 in which the employer declared that she is providing a training program to her employee, the applicant. Details of the training were provided with the letter. In her oral evidence the applicant stated she was working, but this involved hands on experience and professional development while she was working. The applicant stated she was not undertaking a full-time course of study at the current time. The applicant stated she was not undertaking study at an educational institution. The applicant stated she was doing training as part of her employment. The applicant stated she was doing professional training and development as part of her work. The applicant stated her employer was a small business and not an educational institution. The applicant’s employer Ms Kuech Ruach gave evidence by telephone in the hearing. She stated that the applicant had been employed by her for seven months, and works 15 hours per week. The witness stated that the applicant does training at as part of her work week. The witness stated she provided the training, and it was done as part of the applicant’s work. The witness stated the applicant did approximately three hours of formal training per week during her employment. The witness stated she has a formal teaching assessment. The witness stated she is not an educational institution, but runs a business. The witness stated that to the best of her knowledge the applicant is not undertaking a full-time course of study. The witness stated that the applicant was a supportive and valued member of her team. The Tribunal has considered the principles espoused in the judgement of Opoku-Ware v Minister for Immigration and Anor [2015] FCCA 1638, which considered the application of cl.101.221, but applies equally to the requirements of cl.802.221. The judgement found that for an applicant who had turned 18 at the time of application, the requirements of the clause that the applicant “continues” to satisfy the criterion, means that the applicant is required to still be undertaking studies at the time of the decision in respect of that visa. Following this judgement of the Federal Circuit Court of Australia, the Tribunal must be satisfied that the applicant is undertaking a full-time course of study at an educational institution at the time of decision.

Decision

Reasons for decision

The Tribunal discussed with the applicant and her representative that they may wish to consider an application for ministerial intervention, on the basis of the delay of nearly 4 years before the application for review was finalised. The applicant’s representative indicated to the Tribunal this had been considered. The Tribunal invited the applicant, her representative and her father if they wished to say anything further on the matter, but no request for ministerial intervention was made to the Tribunal in the hearing. The Tribunal notes that in matters where applicants are required to meet criterion that impact their lifestyle, such as the subclass 802 visa, including requirements of marital status, not having full-time employment, and requirements of undertaking full-time course of study, the delay in this matter being constituted by the Tribunal, partially caused by the backlog created by the pandemic, may cause a disadvantage to an applicant.DECISION The Tribunal affirms the decision not to grant the applicant a Child (Resident) (Class BT) visa.Date(s) of hearing: 9 January 2025 Representative for the Applicant: Mr Riccardo Ippoliti (MARN: 1386990)

Ratio Decidendi

Legal Principle Established

The Tribunal is not satisfied that the applicant meets the requirements of cl.802.221(2)(b), and therefore does not meet the requirements of cl.802.221.Other considerations The Tribunal discussed with the applicant and her representative that they may wish to consider an application for ministerial intervention, on the basis of the delay of nearly 4 years before the application for review was finalised. The applicant’s representative indicated to the Tribunal this had been considered. The Tribunal invited the applicant, her representative and her father if they wished to say anything further on the matter, but no request for ministerial intervention was made to the Tribunal in the hearing. The Tribunal notes that in matters where applicants are required to meet criterion that impact their lifestyle, such as the subclass 802 visa, including requirements of marital status, not having full-time employment, and requirements of undertaking full-time course of study, the delay in this matter being constituted by the Tribunal, partially caused by the backlog created by the pandemic, may cause a disadvantage to an applicant.DECISION The Tribunal affirms the decision not to grant the applicant a Child (Resident) (Class BT) visa.Date(s) of hearing: 9 January 2025 Representative for the Applicant: Mr Riccardo Ippoliti (MARN: 1386990)