Germanos (Migration) - [2024] AATA 257

Germanos (Migration) [2024] AATA 257 (15 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Sabah Germanos
VISA APPLICANT:  Mr Michel Bou Nassar
CASE NUMBER:  2200786
HOME AFFAIRS REFERENCE(S):          2019002802
MEMBER:Kira Raif
DATE:15 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 15 February 2024 at 2:41pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – not engaged in study at visa application – visa applicant withdrew from his course – incapacitated for work – financial dependence on parents – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221
CASES
Hussain v MIBP [2017] FCCA 3247
Khan v MICMA [2023] FCA 463
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
STATEMENT OF DECISION AND REASONS
Application of review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 November 2021 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 is a national of Lebanon, born in March 1995. He applied for the visa on 30 September 2019. The delegate refused to grant the visa on the basis that cl 101.213 was not met because the visa applicant was not engaged in study when the application was made. The sponsor (the review applicant) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 16 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, his father and cousin. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The review applicant was represented in relation to the review. 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 (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). 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).
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…

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: Germanos (Migration) [2024] AATA 257
Case: [2024] AATA 257
Decision Date: 15 February 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for a Child (Migrant) (Class AH) visa, Subclass 101, made by an applicant who was over 18 years of age. The applicant had withdrawn from their course of study prior to the visa application and was incapacitated for work, relying financially on their parents. The AAT affirmed the delegate's decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the eligibility criteria for a Subclass 101 Child visa, specifically concerning the age and study requirements. The Tribunal also implicitly considered the provisions relating to financial dependence and incapacity for work as they related to the overall assessment of the applicant's eligibility under the relevant migration regulations.

The Tribunal's reasoning focused on the applicant's failure to satisfy the explicit requirements of the Subclass 101 visa. The applicant was over the age limit for the visa, and crucially, had not been engaged in a course of study at the time of the application, having withdrawn from their studies. While the applicant's financial dependence and incapacity for work were noted, these factors did not overcome the fundamental failure to meet the primary criteria for the visa subclass. The Tribunal affirmed the delegate's decision that the criteria for the grant of the visa were not met.

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 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.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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