Hakkini (Migration) - [2025] ARTA 1181

HAKKINI (MIGRATION) [2025] ARTA 1181 (4 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Chaya Dhammithri De Silva Hakkini
Visa Applicant:  Miss Thashani Dhalushika Hettige
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2202639

Tribunal:General Member Howard
Place:Brisbane
Date: 4 July 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Child (Migrant) (Class AH) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl 101.213 of Schedule 2 to the Regulations; and
·cl 101.221 of Schedule 2 to the Regulations

Statement made on 04 July 2025 at 4:53pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – full-time study after turning 18 – gaps in study history – mental health and family matters, gap year in middle of course, then successful completion – change of subject area and career path, and academic progression – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1995 (Cth), Schedule 2, cls 101.213(1)(c), 101.221(2)(b)
CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
Veljanovski v Minister for Home Affairs [2019] FCCA 502
Wake v MIAC [2010] FMCA 272
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 25 January 2022 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 18 January 2021. 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).
The delegate refused to grant the visa on the basis that the visa applicant failed to satisfy cl 101.213 of Schedule 2 to the regulations.
The parties appeared before the Tribunal on 2 May 2025 to give evidence and present arguments.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
As the visa applicant was over 18 years of age at the time of application, the issue in this case is whether she is able to satisfy the requirements of cl 101.213. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).
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…

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 Hakkini (Migration)

Details

AGLC: Hakkini (Migration) [2025] ARTA 1181
Case: [2025] ARTA 1181
Decision Date: 4 July 2025

CaseChat Overview and Summary

The case of Hakkini (Migration) involved an application for a Child (Migrant) (Class AH) visa, specifically subclass 101, by a visa applicant who had turned 18. The applicant’s history included gaps in full-time study, attributed to mental health issues and family circumstances, but ultimately, she successfully completed her course and progressed to a different subject area and career path. The matter was brought before the Administrative Appeals Tribunal to review a decision regarding her eligibility for the visa.

The legal issues before the court were whether the visa applicant met the requirements for a Child (Migrant) (Class AH) visa, particularly the stipulations under regulation 101.213 that she must have been undertaking a full-time course of study at an educational institution since turning 18 or within a reasonable time after completing the equivalent of year 12. The court had to determine if the applicant's gaps in study history and changes in subject area and career path complied with the visa criteria.

The Tribunal concluded that the visa applicant had met the criteria at the time of application and continued to meet them at the time of decision. It considered that the visa applicant had been engaged in full-time study, despite the interruptions, and had successfully completed her course. The Tribunal noted that the regulation does not necessarily require a single, uninterrupted course of study and that the definition of a ‘reasonable time’ must take into account the surrounding circumstances. The Tribunal decided that the decision under review was set aside and the matter was remitted for reconsideration, finding that the visa applicant met the criteria for a Subclass 101 (Child) visa.

The final orders of the Tribunal were to set aside the decision under review and to remit the application for a Child (Migrant) (Class AH) visa for reconsideration, recognising that the visa applicant met the specified criteria for a Subclass 101 (Child) 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 is set aside and the matter be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE As the visa applicant was over 18 years of age at the time of application, the issue in this case is whether she is able to satisfy the requirements of cl 101.213. These requirements must continue to be met at the time of decision: cl 101.221(2)(b). 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). There is no evidence that the visa applicant is, or has ever been, engaged, partnered or married. The Tribunal is satisfied that the visa applicant meets this criteria at the time of application and continues to satisfy it 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). There is no evidence that the visa applicant is, or has ever been, engaged in full-time work. The Tribunal is satisfied that the visa applicant meets this criteria at the time of application and continues to satisfy it 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).

Decision

Reasons for decision

In view of the above, the Tribunal finds the visa applicant is able to satisfy regulation 101.213 at the time of application and given her ongoing full-time study, is able to satisfy cl 101.221 at the time of this decision.Conclusion The Tribunal sets aside the decision under review and remits the application for a Child (Migrant) (Class AH) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:·cl 101.213 of Schedule 2 to the Regulations; and·cl 101.221 of Schedule 2 to the Regulations.

Ratio Decidendi

Legal Principle Established

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