Do (Migration) - [2021] AATA 3840

Do (Migration) [2021] AATA 3840 (21 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Thi Thanh Thuy Do
VISA APPLICANT:  Mr Minh Thuan Do
CASE NUMBER:  1835665
HOME AFFAIRS REFERENCE(S):          2015/071200
MEMBER:M. Edgoose
DATE:21 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 21 September 2021 at 11:05am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – full-time course of study – gap in studies – relationship status – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221; rr 1.03, 1.05
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 12 November 2018 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 16 September 2015. 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 101.213 and cl 101.221.
The delegate refused to grant the visa on the basis that cl 101.213 and cl 101.221was not met.
The review applicant appeared before the Tribunal on 21 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Minh Thuan Do the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The review applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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).
The visa applicant confirmed at hearing that he is not engaged to be married and does not have and never has…

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

AGLC: Do (Migration) [2021] AATA 3840
Case: [2021] AATA 3840
Decision Date: 21 September 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 101, where the applicant was over 18 years of age. The dispute centred on whether the applicant met the specific criteria for this visa subclass, particularly concerning their study status and relationship history.

The primary legal issues before the Tribunal were whether the applicant satisfied the requirements of clause 101.213 of the Migration Regulations 1994, which apply to applicants over 18. Specifically, the Tribunal had to determine if the applicant met the criteria relating to their relationship status, engagement in full-time work, and undertaking a full-time course of study since turning 18, and whether these criteria continued to be met at the time of the decision as required by clause 101.221(2)(b).

The Tribunal reasoned that while the applicant met the requirements regarding their relationship status and not being engaged in full-time work, they failed to satisfy the full-time study requirement. The Tribunal noted that clause 101.213(1)(c) contemplates a continuous period of full-time study or a reasonable time after completing secondary education. Citing precedent from *Sok v MIMIA* [2005] FMCA 190, the Tribunal considered the applicant's activities and the reasons for any gaps in study. Furthermore, applying the principles from *Hussain v MIBP* [2017] FCCA 3247 and *Opoku-Ware v MIBP* (2015) 297 FLR 416, the Tribunal found that the applicant's conduct, characterised as a whole, did not demonstrate they had been undertaking relevant study continuously until the time of the decision, nor were they studying at the time of the decision.

Consequently, the Tribunal concluded that the criteria for the grant of a Subclass 101 visa were not met. The Tribunal affirmed the decision not to grant the visa applicant the Child (Migrant) (Class AH) 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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCECriteria 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). The visa 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 101.213(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 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). The visa applicant informed the Tribunal that he does not work and has never worked. Accordingly, cl 101.213(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 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). Where cl 101.213(1)(c) applies, it must continue to be met at the time of decision: cl 101.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

Decision

Reasons for decision

For the reasons above, 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) visa.M. EdgooseMember

Ratio Decidendi

Legal Principle Established

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