Hayag (Migration) - [2023] AATA 919

Hayag (Migration) [2023] AATA 919 (5 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Ma Alma Hayag
VISA APPLICANT:  Mr Don Franco Hayag
CASE NUMBER:  2017265
HOME AFFAIRS REFERENCE(S):          CLF2019/6383
MEMBER:Peter Emmerton
DATE:5 April 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 05 April 2023 at 3:20pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – over 18 years of age – full-time study requirement – study gaps – approximately 4 years – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 101.213
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 10 November 2020 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 15 January 2019. 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 101.213(1)(c) and 101.213(2).
The delegate refused to grant the visa on the basis that cl 101.213(c) was not met because they were not satisfied the applicant had been in full-time study since turning 18. Nor were they satisfied that 101.213(2) was satisfied as no evidence was tendered to demonstrate that the over 18 applicant was dependent due to being incapacitated for work due to the partial loss of the child’s bodily or mental functions. This was agreed during the hearing by the review applicant.
The review applicant appeared before the Tribunal on 5 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence via video from Mr Don Franco Hayag, the visa applicant and verbal evidence via telephone from Mr Bruce Preece, the husband of the review applicant, who stated that he considers himself to be the stepfather of the visa applicant. The Tribunal found all those giving evidence to be credible and honest with no evidence of obfuscation.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is to satisfy clause 101.213(1)(c) the applicant needs to demonstrate that at the time the application was lodged he was validly enrolled in, and actively participating in, a full-time post-secondary course of study leading to a professional,…

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 Hayag (Migration)

Details

AGLC: Hayag (Migration) [2023] AATA 919
Case: [2023] AATA 919
Decision Date: 5 April 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for a Child (Migrant) (Class AH) visa, Subclass 101, made by Don Franco Hayag. The core of the dispute concerned whether the applicant, who was over 18 years of age at the time of application, met the full-time study requirements stipulated by the visa subclass. The applicant sought review of a decision not to grant the visa.

The legal issues before the Tribunal were whether the applicant had, at the time the application was lodged, been validly enrolled in and actively participating in a full-time post-secondary course of study leading to a professional, trade, or vocational qualification. Furthermore, the Tribunal had to determine if the applicant had been undertaking such a course since turning 18, or had commenced studies within a reasonable period after completing secondary education, and whether these requirements continued to be met at the time of the decision.

The Tribunal reasoned that to satisfy clause 101.213(1)(c) of the Migration Regulations, the applicant needed to provide evidence of both enrolment and active participation in a full-time course of study. The Tribunal reviewed extensive documentary evidence, including academic transcripts, correspondence, and financial transaction reports. It noted a significant study gap of approximately four years after the applicant turned 18, which was not adequately explained or bridged by the evidence presented. The Tribunal concluded that the applicant had not demonstrated that they were actively participating in a full-time course of study as required by the regulations.

Consequently, the Tribunal affirmed the decision not to grant the Child (Migrant) (Class AH) visa, Subclass 101, as the applicant had not met the relevant criteria. No claims were advanced in respect of other visa subclasses within Class AH.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is to satisfy clause 101.213(1)(c) the applicant needs to demonstrate that at the time the application was lodged he was validly enrolled in, and actively participating in, a full-time post-secondary course of study leading to a professional, trade or vocational qualification. The applicant must produce evidence of both enrolment and their active participation, in the course of study. In addition, the applicant must have been undertaking that course since turning 18 years of age or have commenced the studies within six months or a reasonable period after completing secondary education. The Tribunal has considered the following evidence provided to the Department prior to hearing. Email correspondence from Alma Hayag sent on 15 May 2019 to Immigration Manila Philippines Passport belonging to Don Franco Hayag Email correspondence between Immigration Manila and Alma Hayag with various dates Foreign Documents including study details Academic Transcripts belonging to Don Franco Hayag including various dates Department of Home Affairs Refusal for a Child visa dated 10 November 2020 Study details including transcripts, transactions and training details. Department of Immigration Family Child visa subclass 101 application checklist form (undated) Consent form signed by Don Franco Hayag (undated) Passport belonging to Ma Alma Hayag Department of home affairs Application status dated 28 May 2018 Australian Birth Certificate belonging to Bruce Raymond Preece Notice of assessment for Tax Year ending 2018 issued 13 July 2018 belonging to Ms Ma Alma Hayag Notice of assessment for Tax Year ending 2017 issued 25 July 2018 belonging to Ms Ma Alma Hayag Department of Immigration and Border Protection Sponsorship for a child to migrate to Australia form (40CH) signed 06 December 2018 Department of Home Affairs Tax invoice for Ma Alma Hayag dated 28 December 2018 The Tribunal has considered the following evidence provided to the AAT prior to hearing. Applicant statement dated 27 March 2023 Further statement from Ma Alma Hayag, undated RIA Money Transfers (transactions report) between 11 March 2021 to 24 March 2023, totalling approximately AUD $28,000 RIA Money Transfers between 9 December 2020 and 18 November 2020, totalling approximately AUD $10,000 Statement of Gregorio V. Gener (retired police officer), appears to be grandfather, dated March 27, 2023 Letter from Alejandro Preece, brother of Don Franco Hayag, undated, underage (8 years old) Death Certificate of Emilia Saac Gener, dated 23 June 2022 Academic evaluation, Philippine State College of Aeronautics, printed on 27 March 2023 Prints of incoming/outgoing correspondence – not materially effectiveCriteria 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).

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.Peter EmmertonMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.