Chheom (Migration) - [2022] AATA 129

Chheom (Migration) [2022] AATA 129 (17 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sokly Chheom
REPRESENTATIVE:  Mr Pradeep Pun (MARN: 0854819)
CASE NUMBER:  1936319
HOME AFFAIRS REFERENCE(S):          CLF2019/26789
MEMBER:M. Edgoose
DATE:17 January 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 17 January 2022 at 11:21am
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – not engaged in full-time work – currently working part-time – full-time study since turning 18 or completing high school – completed year 10 in home country and did one VET course in Australia –currently not studying – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 802.212, 802.214(1)(a), (c), 802.221(2)(b)
CASES
Hussain v MIBP [2017] FCCA 3247
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 17 December 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 19 June 2019. 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 802.212 and cl 802.214.
The delegate refused to grant the visa on the basis that cl 802.212 and cl 802.214 was not met.
The applicant appeared before the Tribunal on 17 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Somaly Hon the applicant’s stepmother and Mr Somakara Prak the applicant’s stepbrother. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
The applicant was represented in relation to the review by his representative.
For the following reasons, the Tribunal has concluded that the under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria 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…

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 Chheom (Migration)

Details

AGLC: Chheom (Migration) [2022] AATA 129
Case: [2022] AATA 129
Decision Date: 17 January 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, subclass 802, by an applicant who had turned 18. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant met the relevant criteria for the visa, specifically concerning their relationship status, employment, and study. The applicant had completed Year 10 in their home country and undertaken one vocational education and training course in Australia, but was not currently studying and was working part-time.

The primary legal issues before the Tribunal were whether the applicant met the requirements of clause 802.214 of the Migration Regulations 1994, which stipulated that an applicant over 18 must not be engaged to be married or have a spouse or de facto partner, must not be engaged in full-time work, and must have, since turning 18 or within a reasonable time after completing Year 12, been undertaking a full-time course of study leading to a professional, trade, or vocational qualification. The Tribunal also had to consider whether these criteria continued to be met at the time of the decision, as required by clause 802.221(2)(b).

The Tribunal found that the applicant met the criteria regarding relationship status and not being engaged in full-time work, based on their confirmation at the hearing. However, the Tribunal determined that the applicant failed to meet the full-time study requirement. The applicant had not been undertaking a full-time course of study since turning 18 or within a reasonable time after completing Year 12, and was not currently studying. The Tribunal noted that the provision contemplated a single full-time course of study, referencing the principles in *Sok v MIMIA* [2005] FMCA 190.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Child (Residence) (Class BT) visa, as the applicant did not meet all the necessary criteria for the grant of the visa.

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 under review should be affirmed.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). The applicant confirmed at hearing that he is not engaged to be married and does not have and never has had a spouse or de facto partner. Accordingly, cl.802.214(1)(a) is met. It continues to be met 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 submitted to the Tribunal on 9 January 2022 a letter from his employer, Tamarix Eggs. The letter mentioned that the applicant has been employed by Tamarix Eggs since 20 August 2020 and is currently working approximately 20 hours per week. The Tribunal notes that this letter from his employer is not signed. The Tribunal further notes that the applicant has not provided the Tribunal with any evidence such as copies of his payslips to confirm that he is only working in a part time capacity. At hearing the applicant confirmed that he is not engaged in full-time work. Accordingly, cl.802.214(1)(b) is met. It continues to be met at the time of 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). 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

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.M. EdgooseMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 Definitions…dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:(a)has not turned 18; or(b)has turned 18 and:(i) is dependent on that person; or(ii) is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.…step-child, in relation to a parent, means:(a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or(b)a person who is not the child of the parent but:(i) who is the child of the parent’s former spouse or former de facto partner; and(ii) who has not turned 18; and(iii) in relation to whom the parent has:(A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or(B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.1.05A Dependent(1)Subject to subregulation (2), a person (the first person) is dependent on another person if:(a)at the time when it is necessary to establish whether the first person is dependent on the other person:(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions. …

Ratio Decidendi

Legal Principle Established

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