Chan (Migration) - [2021] AATA 1128

Chan (Migration) [2021] AATA 1128 (16 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Brendan Jun Wei Chan
CASE NUMBER:  1933423
HOME AFFAIRS REFERENCE(S):          CLF2018/363876
MEMBER:Stephen Conwell
DATE:16 April 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 16 April 2021 at 7:03pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – child over 18 – full-time study within reasonable time after completing equivalent of Australian year 12 – gap year, study difficulty and change of course – COVID-19 pandemic and difficulty of online study – self-study and part-time work at time of decision – comparison of education systems and standards in home country and Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 802.214(1)(c), 802.221(2)(b)
CASE
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Reyes v MIAC [2007] FMCA 1721
Sok v MIMA [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 21 November 2019 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 3 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 (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). It provides that, 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).
The delegate refused to grant the visa on the basis that the applicant did not meet cl. 802.214 because the delegate was not satisfied the applicant was engaged in studies full-time in accordance with cl.802.214(1)(c).
The delegate also considered clause 802.214(2), which states that the study clause will not apply to an applicant over the age of 18 years who is incapacitated for work due to the total or partial loss of their bodily or mental functions. As the applicant made no claims of his incapacity the delegate found that he did not meet clause 802.214(2).
The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.
The hearing was held…

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.

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Details

Case: [2021] AATA 1128
Decision Date: 16 April 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Department of Home Affairs not to grant the applicant a Child (Residence) (Class BT) visa, Subclass 802. The applicant, who was over 18 at the time of application, sought to demonstrate that he met the criteria for the visa, which included requirements relating to relationships, work, and study. The Tribunal was required to determine whether the applicant had satisfied these criteria, both at the time of his application and at the time of the decision.

The primary legal issue before the Tribunal was whether the applicant had met the full-time study requirement under clause 802.214(1)(c) of the Migration Regulations 1994. This clause requires that an applicant over 18, since turning 18 or within a reasonable time after completing the equivalent of Australian Year 12, must have been undertaking a full-time course of study leading to a professional, trade, or vocational qualification. The Tribunal also considered whether the applicant had met the related requirements of not being engaged in full-time work and not having a spouse or de facto partner, which must be met at both the time of application and the time of decision.

The Tribunal found that while the applicant had completed his secondary education in June 2016, he then took a gap year before commencing a Diploma of Leadership and Management in February 2018. He found this course too challenging and subsequently withdrew in October 2018 to enrol in a Certificate IV unit of Leadership and Management. The Tribunal noted that the applicant had not been undertaking a full-time course of study within a reasonable time after completing Year 12, nor had he been undertaking such a course at the time of his application. The Tribunal accepted that the applicant was not engaged in full-time work and had no spouse or de facto partner, but concluded that the failure to meet the full-time study requirement meant the criteria for the visa were not met.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The decision record set out the applicant’s study history in some detail, which at hearing, the applicant confirmed to be accurate. The relevant aspects of his study history are summarised below: ·the applicant’s Secondary Education Certificate from Temby International School Malaysia, records that he completed his secondary education in June 2016;·the applicant took a ‘gap year’ between October 2016 – September 2017 to work part-time in the family business a few days a week. During this period he also travelled around Malaysia on short trips and had an extended holiday in Taiwan;·in February 2018 he enrolled in a Diploma of Leadership and Management at the Australian Academy of Commerce (AAC), commencing the course on 9 April 2018;·he completed two semesters at AAC but found the course to be too challenging for his ability. He made enquiries about changing courses;·in October 2018 he withdrew from AAC and changed his enrolment to a Certificate IV unit of Leadership and Management at Times Academy, commencing this course on 8 October 2018. He was enrolled in this course at the time he lodged his application for the Child (Subclass 802) visaCONSIDERATION 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). The applicant told the Tribunal that he had never been engaged, married or in a de facto partner in a relationship. Based on the 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, he 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 Tribunal accepts the evidence that the applicant was not engaged in full-time work at the time of application. At hearing the applicant told the Tribunal that he has been working part-time for 20 hours per week, since April 2020 and he continues to do so. Accordingly, the Tribunal accepts that he is not currently engaged in full-time work and cl.802.214(1)(b) is met at the time of this decision. 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).

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.Stephen ConwellMember

Ratio Decidendi

Legal Principle Established

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