Bonete (Migration) - [2025] ARTA 2141

BONETE (MIGRATION) [2025] ARTA 2141 (4 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Corazon Lizandra Bonete
Visa Applicant:  Ms Celine Gail LIzandra Bonete
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2307101

Tribunal:General Member Downes
Place:Brisbane
Date: 4 July 2025
Decision:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 04 July 2025 at 8:33am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – dependent child of an Australian resident – full-time course of study – lengthy gap in studies – family health issue – impact of COVID pandemic restrictions – mental health issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221; r 1.03
CASES
Berenguel v MIAC [2010] HCA 8
Hussain v MIBP [2017] FCCA 3247
Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 463
Opoku-Ware v MIBP (2015) 297 FLR 416
Reyes v Minister for Immigration & Anor [2007] FMCA 1721
Wake v Minister for Immigration & Anor [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 22 March 2023 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 101 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 29 July 2022. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).
The delegate refused to grant the visa on the basis that the visa applicant did not meet the study-related criteria in cl 101.213(1)(c) of Schedule 2 to the Regulations.
The review applicant appeared before the Tribunal on 12 May 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUE AND LAW
A subclass 101 visa is for a person outside of Australia seeking a permanent visa based on being the dependent child of an Australian citizen or permanent visa holder.
Relevantly to this matter, if, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work, and study: cl 101.213. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).
Pursuant to cl 101.213(1)(c), 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…

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 Bonete (Migration)

Details

AGLC: Bonete (Migration) [2025] ARTA 2141
Case: [2025] ARTA 2141
Decision Date: 4 July 2025

CaseChat Overview and Summary

The case of Bonete (Migration) involved a 27-year-old woman from the Philippines who applied for a Child (Migrant) (Class AH) visa, subclass 101, as a dependent child of an Australian resident. The application was sponsored by the applicant’s mother, the review applicant. The primary issue was whether the visa applicant met the eligibility criteria for the subclass 101 visa, specifically if she was engaged in a full-time course of study as required by the legislation.

The court had to determine if the applicant’s lengthy gap in studies and the circumstances surrounding her enrolment and withdrawal from various courses qualified her for the subclass 101 visa. The applicant had graduated from high school in 2014 and completed a Bachelor of Arts in April 2020. After her graduation, she took a break in studies, which was exacerbated by financial difficulties and her mother’s breast cancer diagnosis. She then enrolled in an Australian Grand Diploma in Commercial Cookery, Professional Baking, and Hospitality Services, but withdrew due to financial constraints and later enrolled in another course in December 2022. The court needed to ascertain whether these circumstances justified her eligibility for the visa under the subclass 101.

The court held that the visa applicant did not meet the eligibility criteria for the subclass 101 visa. The court found inconsistencies in the applicant’s statements regarding her enrolment dates and preferred the documentary evidence provided. Given the lengthy break in studies and the circumstances surrounding her enrolment in courses, the court concluded that the applicant had not been engaged in a full-time course of study as required. The court affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The court in Reyes v Minister for Immigration & Anor [2007] FMCA 1721 opined at [14] that cl 101.213 (which is in the same terms as cl 802.214(1)(c)) “is concerned with allowing people who are 18 or more, and who are thus legally adults, to continue to be eligible for child migrant visas on the basis that they are doing full-time, career-oriented, post-secondary courses of the sort usually undertaken by young adults”.CONSIDERATION OF CLAIMS AND EVIDENCE The visa applicant is a 27-year-old woman from the Philippines. At the time she applied for the visa, she was aged 24 years. The visa application is sponsored by the visa applicant’s mother, the review applicant. It is uncontentious that the visa applicant graduated from high school in 2014 and that she then studied a Bachelor of Arts at Ateneo de Davao University, from which she graduated in April 2020. What transpired after this time is less clear, in part due to errors which the visa applicant concedes that she has made in her written evidence.Further study undertaken by the visa applicant The visa applicant concedes that she took a break in studies following the completion of her Bachelor degree. The visa applicant claims to have recommenced study in June 2022 when she enrolled in an Australian Grand Diploma in Commercial Cookery, Professional Baking, and Hospitality Services at the Institute of International Culinary and Hospitality Entrepreneurship (First Cooking School). Initially, she claimed that she enrolled in this course in January 2022. The visa applicant claims to have withdrawn from the First Cooking School due to financial hardship and the review applicant’s diagnosis with breast cancer, which further impacted her financial situation. She then claims to have then enrolled in Associate in Culinary, Baking and Pastry Production (Second Cooking School) at Joji Illagan International Management School in November 2022. Initially, she claimed that she enrolled in this course in June 2022. The visa applicant submitted some documentary evidence to the Tribunal in support of her claims, including:a.A statement of account regarding the First Cooking School dated December 2022, which provides an enrolment date of 15 November 2022.b.A registration form for the Second Cooking School dated 8 December 2022, which provides an enrolment date of 8 December 2022.c.A letter from the review applicant’s doctor dated 29 November 2022 stating to the effect that the review applicant commenced treatment for breast cancer in November 2022. I do not accept the visa applicant’s claims as to when she commenced the First Cooking School and the Second Cooking School as they are inconsistent with the documentary evidence provided, and I prefer the documentary evidence because I consider it more reliable. Having regard to this evidence, I find that:a.The visa applicant enrolled in the First Cooking School on 15 November 2022, but withdrew from the course shortly thereafter.b.The visa applicant enrolled in the Second Cooking School on 8 December 2022.

Decision

Reasons for decision

The criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).DECISION The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visaDate(s) of hearing: 12 May 2025Representative for the Applicant: Mr Leonardo Giampietro

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.