Basnayake Appuhamilage (Migration) - [2022] AATA 2572

Basnayake Appuhamilage (Migration) [2022] AATA 2572 (16 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Ayesha Dilrukshi Tissera Basnayake Appuhamilage
REPRESENTATIVE:  Mr David Stratton (MARN: 9358007)
CASE NUMBER:  2011706
HOME AFFAIRS REFERENCE(S):          CLF2018/365033
MEMBER:Stephen Conwell
DATE:16 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:
·cl.802.214 of Schedule 2 to the Regulations; and
·cl.802.221 of Schedule 2 to the Regulations.

Statement made on 16 June 2022 at 1:48pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – misleading information in the visa application – continuous full-time studies – enrolment cancelled – period of casual employment – reasonable time – gap in studies – impact of toxic relationship – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.214, 802.221
CASES
Berenguel v MIAC [2010] HCA 8
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
Sok v MIAC [2007] FCE 413
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 Home Affairs on 9 July 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 5 December 2018. 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, which require the applicant to satisfy certain criteria related to work and study, as well as not be in certain categories of relationship.
The delegate refused to grant the visa on the basis that cl.802.214(1)(c) was not met because the delegate found that the applicant had not been a full-time, continuous student since she turned 18 years of age.
The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.
The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video hearing via Microsoft Teams. The Tribunal exercised its discretion to hold the hearing in this manner. The parties raised no objections…

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 Basnayake Appuhamilage (Migration)

Details

AGLC: Basnayake Appuhamilage (Migration) [2022] AATA 2572
Case: [2022] AATA 2572
Decision Date: 16 June 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, brought by Basnayake Appuhamilage. The primary dispute revolved around whether the applicant met the 'continuous study' requirement stipulated in subclause 802.221(2)(b) of the Migration Regulations 1994 at the time of her application, and whether she continued to be a full-time student at the time of the decision. The Federal Circuit and Family Court of Australia, through Member Stephen Conwell, was tasked with determining these issues.

The court was required to consider whether the applicant had, since turning 18, or within a reasonable time after completing the equivalent of Year 12, been undertaking a full-time course of study leading to a professional, trade, or vocational qualification, as required by clause 802.214(1)(c). Furthermore, the court had to assess if this requirement, along with others such as not being engaged in full-time work and maintaining a specific relationship status, continued to be met at the time of the decision, as mandated by clause 802.221(2)(b). The court also had to consider the meaning of 'reasonable time' in the context of the study requirement, taking into account surrounding circumstances, activities undertaken, and reasons for any lack of activity.

The court found that the applicant met the criteria relating to her relationship status and not being engaged in full-time work at both the time of application and the time of decision. However, the applicant's enrolment in a course had been cancelled, and she had a period of casual employment and a gap in her studies. While the court acknowledged the applicant's explanation for the gap in studies, which involved a toxic relationship, it did not make a definitive finding on whether the applicant had met the 'continuous study' requirement or was a full-time student at the time of the decision.

Consequently, the court remitted the application for a Child (Residence) (Class BT) visa back to the Minister for reconsideration. The direction was that the applicant met the criteria under clauses 802.214 and 802.221 of Schedule 2 to the Regulations, leaving the remaining criteria to be assessed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue in the present case is whether the applicant meets the ‘continuous study’ requirement in subclause 802.221(2)(b) at the time of application, and whether she continues to be a full-time student at the time of decision.CONSIDERATION OF CLAIMS AND EVIDENCECriteria 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).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). Based on the written and oral evidence, the Tribunal is satisfied that at the time of the application, the applicant was not engaged to be married, did not have a spouse or de facto partner, and had never had a spouse or de facto partner. Accordingly, the applicant met the requirements of cl.802.214(1)(a) at the time of application. The Tribunal is satisfied that the applicant continues to meet this requirement 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). The applicant told the Tribunal that she had never been engaged in full-time work and has been supported by her father and at times by Mr Tyron and Mrs Maria Buultiens, who are close friends of her father, but who the applicant describes as her ‘step-parents’, due to the closeness of their relationship. The applicant currently works 20 hours a week in a casual part-time capacity in disability care. She commenced this work last year. This was corroborated by the witnesses, with Mr Buultiens stating they have an understanding with the sponsor that he would reimburse them any major expenses they may incur on the applicant’s behalf. Having considered the evidence before it, the Tribunal is satisfied that the applicant has never been engaged in full-time work and continues to be financially reliant on her father and on occasion upon Mr and Mrs Buultiens. Accordingly, the Tribunal is satisfied that the applicant meets this requirement.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).

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 (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:·cl.802.214 of Schedule 2 to the Regulations; and·cl.802.221 of Schedule 2 to the Regulations.Stephen ConwellMember

Ratio Decidendi

Legal Principle Established

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