Formoso (Migration) - [2021] AATA 4037

Formoso (Migration) [2021] AATA 4037 (5 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Jennifer Siembre Formoso
VISA APPLICANT:  Mr John Benedict Formoso
CASE NUMBER:  1910968
HOME AFFAIRS REFERENCE(S):          201721919 CLF2017/21919
MEMBER:Moira Brophy
DATE:5 October 2021
PLACE OF DECISION:  Sydney
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 101.213(1)(a)(b) and (c) of Schedule 2 to the Regulations; and
·cl 101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 05 October 2021 at 3:06pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa –applicant is over the age of 18 years – studies were ongoing – reasonable full-time study period –applicant continued to be a full time student at time of decision – credible evidence –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221

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 23 February 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 13 March 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 101.221(2)(b) which requires that an adult child, that is, a child who has turned 18, be a full-time student at the time of decision.
The delegate in a decision dated 23 February 2019 refused to grant the visa on the basis that cl 101.213(2) was not met because the visa applicant had turned 18 and there was insufficient evidence to show he had since turning 18 or within a reasonable period after completing the equivalent of year 12 in the Australian school system been undertaking a full-time course of study leading to the award of a professional, trade or vocational qualification.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing…

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 Formoso (Migration)

Details

AGLC: Formoso (Migration) [2021] AATA 4037
Case: [2021] AATA 4037
Decision Date: 5 October 2021

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101 (Child), by a 25-year-old male citizen of the Philippines. The applicant's mother, an Australian citizen, sponsored his application. The primary dispute revolved around whether the applicant met the additional criteria for applicants over 18 years of age, specifically concerning full-time study. The decision was made by Moira Brophy of the Tribunal.

The legal issues before the Tribunal were whether the applicant satisfied clause 101.213 and clause 101.221 of Schedule 2 to the relevant regulations. Clause 101.213 sets out requirements for applicants over 18 regarding relationship status, engagement in full-time work, and undertaking a full-time course of study. Clause 101.221 stipulates that these criteria must continue to be met at the time of the decision. The delegate had refused the visa on the basis that clause 101.213(2) was not met, finding no evidence of the applicant undertaking a full-time course of study leading to a qualification since turning 18 or within a reasonable period after completing Year 12.

The Tribunal found that the applicant met the criteria relating to his relationship status (clause 101.213(1)(a)) and not being engaged in full-time work (clause 101.213(1)(b)), accepting the evidence provided by the applicant and sponsor. Crucially, the Tribunal also found that the applicant met clause 101.213(1)(c) and clause 101.221(2)(b), indicating that he was undertaking a full-time course of study leading to a qualification and continued to do so at the time of the decision.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the specified criteria under clauses 101.213 and 101.221.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The visa applicant (the applicant) is a 25-year-old male. He is a citizen of the Philippines. His mother lives in Australia with his stepfather and stepbrother. He has another brother and sister residing in Australia with his mother. The applicant’s mother, Ms Jennifer Siembro Formosa was sponsored to Australia on a Partner visa by Mr Harley Jones. She arrived in Australia on 10 March 2012 and became an Australian citizen on 19 September 2016.CONSIDERATION OF CLAIMS AND EVIDENCE 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 Regulations. Relevantly to this case, they include cl 101.213 which provides additional requirements to be satisfied by a visa applicant who has turned 18 relating to relationships, work, and study. The delegate refused to grant the visa on the basis that cl 101.213(2) was not met because there was no evidence that the applicant had since turning 18 or within a reasonable period after completing the equivalent of year 12 in the Australian school system been undertaking a full-time course of study leading to the award of a professional, trade or vocational qualification. The issues in this case are whether the applicant meets cl 101.213 and cl 101.221.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 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 Tribunal accepts the evidence of the sponsor and the applicant that the applicant is not married, engaged to be married or in a defacto relationship now, and was not at the time of application. There is no evidence to contradict this and no reason not to accept the evidence of the sponsor and applicant. 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 Tribunal accepts, on the evidence of the sponsor and the applicant, and evidence of regular remittances provided by the sponsor, that the applicant is not, and has never, been engaged in full-time work. Accordingly, cl 101.213(1)(b) is met and continues to be met at the time of decision.Full-time study (or incapacitated for work)

Evidence

Evidence Before The Court

The applicant’s mother, Ms Jennifer Siembro Formosa was sponsored to Australia on a Partner visa by Mr Harley Jones. She arrived in Australia on 10 March 2012 and became an Australian citizen on 19 September 2016.CONSIDERATION OF CLAIMS AND EVIDENCE 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 Regulations. Relevantly to this case, they include cl 101.213 which provides additional requirements to be satisfied by a visa applicant who has turned 18 relating to relationships, work, and study. The delegate refused to grant the visa on the basis that cl 101.213(2) was not met because there was no evidence that the applicant had since turning 18 or within a reasonable period after completing the equivalent of year 12 in the Australian school system been undertaking a full-time course of study leading to the award of a professional, trade or vocational qualification. The issues in this case are whether the applicant meets cl 101.213 and cl 101.221.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 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 Tribunal accepts the evidence of the sponsor and the applicant that the applicant is not married, engaged to be married or in a defacto relationship now, and was not at the time of application. There is no evidence to contradict this and no reason not to accept the evidence of the sponsor and applicant. 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 Tribunal accepts, on the evidence of the sponsor and the applicant, and evidence of regular remittances provided by the sponsor, that the applicant is not, and has never, been engaged in full-time work. Accordingly, cl 101.213(1)(b) is met and 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 101.213(1)(c).

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 (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:·cl 101.213(1)(a)(b) and (c) of Schedule 2 to the Regulations; and·cl 101.221(2)(b) of Schedule 2 to the Regulations.Moira BrophyMember

Ratio Decidendi

Legal Principle Established

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