Chen (Migration) - [2022] AATA 127

Chen (Migration) [2022] AATA 127 (19 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Yuanqiong Chen
VISA APPLICANT:  Mr Honghao Li
REPRESENTATIVE:  Ms Esther Yu (MARN: 9802211)
CASE NUMBER:  1904969
HOME AFFAIRS REFERENCE(S):          OSF2017/019194
MEMBER:Margie Bourke
DATE:19 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl.101.211 and cl.101.213 of Schedule 2 to the Regulations; and
·cl 101.221 of Schedule 2 to the Regulations.

Statement made on 19 January 2022 at 12:20pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child over 18 – main source of financial support – applicant’s part-time work while studying and casual part-time work since – review applicant’s monthly transfers to applicant – full-time study within a reasonable time after completing high school – review applicant’s financial difficulties prevented applicant studying for one year – status of study at open university – applicant’s study is full-time – evidence of current enrolment – applicant now turned 25 – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, 1.05A, Schedule 2, cls 101.211(1)(a)(ii), (b), 101.213(1)(c)(i)(A), 101.221(2)(a)(ii), (b)
CASES
Hussain v MIBP [2017] FCCA 3247
Huynh v MIMA [2006] FCAFC 122
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 10 January 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 22 November 2017. 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 criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 101.211, cl.101.213 and cl.101.221.
The delegate refused to grant the visa on the basis that the visa applicant did not meet the requirements of cl 101.213(1)(c) at the time of application, and did not continue to meet the requirements of either cl.101.211 or cl.101.213(1)(c) at the time of decision, and therefore did not meet the requirements of cl.101.221.
The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, the visa applicant and the nature of the review. The Tribunal had regard to the fact the hearing would not involve an extensive number of documents to be put to the…

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 Chen (Migration)

Details

AGLC: Chen (Migration) [2022] AATA 127
Case: [2022] AATA 127
Decision Date: 19 January 2022

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Chen, regarding a decision to refuse a Child (Migrant) (Class AH) visa, Subclass 101. The visa applicant, the child of the review applicant, was over 18 years of age at the time of the application and the subsequent decision. The core of the dispute revolved around whether the child met the criteria for being a "dependent child" under the Migration Regulations 1994, particularly concerning financial support and full-time study. The case was heard by a delegate of the Tribunal.

The Tribunal was required to determine whether the visa applicant met the criteria for a dependent child as defined by the Regulations, specifically whether they were reliant on the review applicant for financial support and whether they were undertaking full-time study. The Tribunal also needed to consider the specific requirements for applicants over 18, including their relationship status, whether they were engaged in full-time work, and if they were undertaking a full-time course of study since turning 18 or within a reasonable time after completing secondary education. The Tribunal had to assess these criteria as they applied at the time of the application and at the time of the decision.

The Tribunal reasoned that the visa applicant was the son of the review applicant and was 23 years old at the time of application, with the review applicant being an Australian permanent resident. The Tribunal was satisfied that the visa applicant was not engaged and did not have a spouse or partner at the time of application, and had never been engaged in full-time work. Crucially, the Tribunal found that the visa applicant met the criteria for being a dependent child, even though they had turned 25 by the time of the decision, as the Regulations allow for this if the applicant turned 18 or 25 during the process. The Tribunal also considered the applicant's study status, noting that the applicant's study at an open university was considered full-time and that financial difficulties had delayed their studies for a year.

Ultimately, the Tribunal concluded that the visa applicant met the criteria under cl 101.211 and cl 101.221(2)(a) of the Regulations. However, due to the complexities surrounding the applicant's study progression and financial support, the Tribunal remitted the decision for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEDependent child criteria The criterion in cl 101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl 101.221(1) or (2)(a).Dependent child At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl 101.211(1)(a). ‘Dependent child’ is defined in reg 1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44]. There is no finding in the Departments decision record dated 10 January 2019 in relation to whether the visa applicant meets the requirements of cl.101.211 at the time of application. In the absence of any conclusion that the visa applicant does not satisfy the requirements of cl.101.211 at the time of application, in the Department’s decision record, the Tribunal assumes that the delegate was satisfied that the visa applicant met these requirements. The delegate recorded that based on the information available at the time of decision the visa applicant did not continue to meet the criteria described in cl.101.211, and this was one of the reasons the visa applicant did not meet the requirements of cl.101.221. For completeness, the Tribunal has considered the evidence in relation to whether the visa applicant meets the requirements of cl.101.211 at both the time of application and at the time of decision. Based on the notarial birth certificate, which records the date of birth of the visa applicant and the identities of his parents, I am satisfied that the visa applicant is the son of the review applicant, and that the visa applicant was born in October 1994. I am satisfied therefore that the visa applicant is the child of the review applicant and at the time of application, 22 November 2017, was aged 23 years. I am satisfied the review applicant was the holder of a subclass 100 visa at the time of application and therefore is an Australian permanent resident visa holder. I am satisfied based on the evidence before me, that at the time of application the visa applicant was not engaged, and did not have a spouse or partner.

Decision

Reasons for decision

Accordingly, cl 101.211(1)(a) is met at the time of application, and continues to be met at the time of decision. Cl 101.211(1)(b) is met at the time of application, and does not continue to be met at the time of decision because the visa applicant has turned 25. Cl.101.211(1)(c) is met at the time of application, and continues to be met at the time of decision. At the time of decision the visa applicant is a person who had turned 18 at the time of application and does not continue to satisfy the criterion of cl.101.211 only because these applicant has turned 25. Therefore I am satisfied that the visa applicant meets the requirements of cl.101.221(a)(ii) at the time of decision.Conclusion about dependent child criteria For the reasons above, the visa applicant satisfies the criteria in cl 101.211 and cl 101.221(2)(a).Criteria for applicants over 18 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).Relationship status and history At the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl 101.213(1)(a). This must continue to be the case at the time of this decision: cl 101.221(2)(b). Based on the written and oral evidence before me I am satisfied that the visa applicant is not and has never been engaged to be married, and is not and has never had a spouse or de facto partner. Accordingly, the visa applicant meets the requirements of cl 101.213(1)(a) at the time of application, and continues to meet these requirements at the time of decision.Not engaged in full-time work At the time of application, the visa applicant must not be engaged in full-time work: cl 101.213(1)(b). This must continue to be the case at the time of this decision: cl 101.221(2)(b). Based on the written and oral evidence before me I am satisfied that the visa applicant has never been engaged in full-time work. Accordingly, the visa applicant meets the requirements of cl 101.213(1)(b) at the time of application, and continues to meet these requirements at the time of decision.Full-time study (or incapacitated for work) At the time of application, the visa 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 101.213(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 101.213(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 101.213(2).

Ratio Decidendi

Legal Principle Established

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