Huang (Migration) - [2021] AATA 5446

Huang (Migration) [2021] AATA 5446 (7 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Ruiling Huang
VISA APPLICANT:  Mr Weijun Chen
CASE NUMBER:  1903040
HOME AFFAIRS REFERENCE(S):          OSF2017/019147
MEMBER:Christine Kannis
DATE:7 December 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 07 December 2021 at 7:10am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – subclass 101 (Child) visa –applicant over 18– applicant has not enrolled in a further course of study – no evidence of current enrolment was provided – visa applicant is currently studying part-time and is working full-time – cl.101.213 does not continue to be met at the time of decision – decision under review affirmed

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 6 December 2018 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 23 August 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 (the Regulations). Relevantly to this case, they include cl 101.213, which comprises criteria that must be satisfied by visa applicants who are 18 or older at the time of application.
The visa was refused on the basis that cl 101.213 or cl 101.221 were not met because the delegate was not satisfied that since turning 18, or within six months or a reasonable time after completing the equivalent of Year 12 in the Australian school system, the visa applicant had been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
A copy of the Decision Record was submitted to the Tribunal by the review applicant for the purposes of the review.
The review applicant appeared before the Tribunal on 23 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The review applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted…

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 Huang (Migration)

Details

AGLC: Huang (Migration) [2021] AATA 5446
Case: [2021] AATA 5446
Decision Date: 7 December 2021

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, subclass 101, by an applicant who was over 18 years of age at the time of application. The review applicant, representing the visa applicant, sought to have the decision not to grant the visa set aside. The Tribunal was required to consider whether the visa applicant met the relevant criteria under the Migration Regulations 1994, specifically focusing on the requirements for applicants over 18.

The primary legal issue before the Tribunal was whether the visa applicant had fulfilled the criteria relating to full-time study under cl 101.213(1)(c) of the Migration Regulations 1994, both at the time of application and at the time of the decision. This criterion, along with others concerning relationship status and full-time work, must continue to be met at the time of the decision, as stipulated by cl 101.221(2)(b). The applicant, born on 15 April 1995, was 22 years old at the time of application.

The Tribunal found that the applicant met the criteria regarding relationship status and not being engaged in full-time work at the time of application. However, the critical issue was the full-time study requirement. While the applicant claimed to be studying part-time and working full-time at the time of the decision, the Tribunal noted that cl 101.213(1)(c) requires the applicant to be engaged in full-time study, or be incapacitated for work. The evidence presented indicated the applicant was working full-time and studying part-time, meaning the criterion of full-time study was not met at the time of the decision.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, subclass 101, as the criteria for the grant of the visa were not met. No claims or evidence were advanced regarding other visa subclasses within Class AH.

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 should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE In accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted its review to the particular criterion on which the primary decision was made. The issue in this case is whether the visa applicant has fulfilled the criteria relating to full‑time study under cl 101.213(1)(c) at the time of application and at the time of this decision.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). The applicant’s passport indicates his date of birth is 15 April 1995 and therefore he was aged 22 at the time of application.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). The visa applicant claimed to not have been married and to not have (or ever have had) a spouse or de facto partner. The review applicant confirmed this information at the hearing. As these matters have not been contested by the delegate, and there is no evidence or claim before this Tribunal that the visa applicant has somehow provided false or misleading evidence in regard to these aspects, the Tribunal accepts the visa applicant’s claims at face value. Given the above, the Tribunal finds cl 101.213(1)(a) is met at the time of application and 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). At the time of application, the visa applicant claimed not to have been engaged in full‑time work. The evidence before the Tribunal is that the visa applicant worked part-time as a Teaching Assistant from December 2013 to February 2015 and that he had two other part‑time jobs, at a café from June 2013 to July 2013 and at C-Store from September 2013 to July 2014. At hearing, the review applicant confirmed that at that time of application, the visa applicant had not worked on a full-time basis. As this matter has not been contested by the delegate, and there is no evidence or claim before this Tribunal that the visa applicant has somehow provided false or misleading evidence in regard to this aspect, the Tribunal accepts the visa applicant’s claims at face value. Given the above, the Tribunal finds cl 101.213(1)(b) is met at the time of application. The review applicant told the Tribunal that the visa applicant is currently working on a full‑time basis (see paragraph 37 below) and therefore cl 101.213(1)(b) does not continue to be met at the time of decision.Full-time study (or incapacitated for work)

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, nor any evidence provided, 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.Christine KannisMember

Ratio Decidendi

Legal Principle Established

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