Fung (Migration) - [2024] AATA 3641

Fung (Migration) [2024] AATA 3641 (3 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tak Wai Fung
REPRESENTATIVE:  Mr Anand Naidu
CASE NUMBER:  2015184
HOME AFFAIRS REFERENCE(S):          CLF2019/25539
MEMBER:Kira Raif
DATE:3 October 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 03 October 2024 at 8:23am
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant over 24 years – dependent child of an Australian relative – money transfers – gap in full-time studies – applicant withdrew from a course – financial hardship – current part-time study – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.212, 802.214, 802.216, 802.221, 802.226; r 1.03
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 23 September 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of China, born in July 1997. He applied for the visa on 30 May 2019. The delegate refused to grant the visa on the basis that cl 802.212 was not met because the delegate was not satisfied the applicant was a dependent child of the sponsor. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 18 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother Ms Kayin Cheung. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicant was represented in relation to the review.
At the conclusion of the hearing the applicant’s representative requested, and was granted, additional time to provide post-hearing written submissions. Further submissions were provided on 2 October 2024 and the Tribunal has had regard to these. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
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 (Cth) (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.
The criterion in cl 802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25…

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 Fung (Migration)

Details

AGLC: Fung (Migration) [2024] AATA 3641
Case: [2024] AATA 3641
Decision Date: 3 October 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Mr. Fung for a Child (Residence) (Class BT) visa, specifically Subclass 802. The applicant, who was over 24 years of age, sought to establish that he was a dependent child of an Australian relative. The core of the dispute revolved around whether Mr. Fung met the dependency requirements, particularly in light of a gap in his full-time studies and his current part-time enrolment, which he attributed to financial hardship.

The Tribunal was required to determine whether the applicant satisfied the criteria for the grant of a Subclass 802 visa, specifically concerning his dependency on an Australian relative. This involved assessing whether the applicant's circumstances, including his educational pursuits and financial situation, demonstrated the requisite level of dependency as defined by the migration regulations. The Tribunal also noted that no claims had been advanced in respect of another visa subclass within Class BT, namely Subclass 837.

In reaching its decision, the Tribunal found that the applicant had not met the criteria for the grant of the visa. While acknowledging the applicant's claims of financial hardship and a gap in full-time studies due to withdrawing from a course, the Tribunal concluded that these circumstances did not establish the necessary dependency. Consequently, the Tribunal affirmed the decision not to grant Mr. Fung the Child (Residence) (Class BT) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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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.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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