Flores (Migration) - [2021] AATA 1779

Flores (Migration) [2021] AATA 1779 (24 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Patricia Joie Flores
CASE NUMBER:  2006842
HOME AFFAIRS REFERENCE(S):          CLF2019/16812
MEMBER:Cathrine Burnett-Wake
DATE:24 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:
·cl.802.214 of Schedule 2 to the Regulations.

Statement made on 24 May 2021 at 10:44am
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – full-time study requirement – study gap between April 2017 and May 2018 – visa issues – lack of IELTS to enrol into an Australian course – engaged in some informal English classes – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 802.214
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 19 March 2020 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 21 March 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.802.214.
The delegate refused to grant the visa on the basis that cl. 802.214(1)(c) as they found the applicant has not undertaken continuous, full-time study since turning 18.
The applicant appeared before the Tribunal on 24 March 2021 to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether, at the time of application, the applicant had, 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.
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…

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 Flores (Migration)

Details

AGLC: Flores (Migration) [2021] AATA 1779
Case: [2021] AATA 1779
Decision Date: 24 May 2021

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, before the Tribunal. The applicant, who had turned 18, was required to meet certain criteria, including a full-time study requirement. The central dispute revolved around whether the applicant had satisfied this study requirement, particularly given a gap in her formal studies between April 2017 and May 2018, during which she had not obtained the necessary English language proficiency (IELTS) to enrol in an Australian course and had instead engaged in informal English classes.

The Tribunal was required to determine whether the applicant had, since turning 18 or within a reasonable time after completing the equivalent of Year 12, been undertaking a full-time course of study at an educational institution leading to a professional, trade, or vocational qualification, as stipulated by clause 802.214(1)(c) of the relevant regulations. The Tribunal also had to consider whether this requirement continued to be met at the time of the decision, as per clause 802.221(2)(b).

In its reasoning, the Tribunal accepted the applicant's evidence that she met the criteria relating to relationship status and not being engaged in full-time work. However, the Tribunal found that the applicant had not met the full-time study requirement as defined by clause 802.214(1)(c). The Tribunal noted that the provision contemplates a single full-time course of study, referencing the principles in *Sok v MIMIA* [2005] FMCA 190 regarding the interpretation of 'reasonable time' and the surrounding circumstances. The Tribunal concluded that the applicant's informal English classes did not constitute a full-time course of study at an educational institution leading to a qualification.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 802.214 of Schedule 2 to the Regulations, implying that other criteria, not detailed in the provided text, would be considered.

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 EVIDENCE The issue in the present case is whether, at the time of application, the applicant had, 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.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 of this decision: cl.802.221(2)(b). The applicant has made claims that she is single. That she is not engaged to be married and has never been a spouse or de facto partner. The applicant gave written testimony asserting this and at hearing also provided the same sworn evidence. The Tribunal accepts the applicant’s evidence in this regard as there is no evidence before the Tribunal to suggest otherwise. 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 made claims that she has not been engaged in full-time work. The applicant gave written testimony asserting this and at hearing also provided the same sworn evidence. The Tribunal accepts the applicant’s evidence in this regard as there is no evidence before the Tribunal to suggest otherwise. 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

Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:·cl.802.214 of Schedule 2 to the Regulations.Cathrine Burnett-WakeMember

Ratio Decidendi

Legal Principle Established

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