Jetketkit (Migration) - [2024] ARTA 139

Jetketkit (Migration) [2024] ARTA 139 (12 December 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Janyaporn Jetketkit
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2438999

Tribunal:Senior Member M Ison
Place:Melbourne
Date: 12 December 2024
Decision:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 12 December 2024 at 12:14pm
CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant is not engaged at the time of this decision – didn’t meet study requirement – rare and degenerative neurological condition – Tribunal has decided to not refer the applicant’s circumstances to the Minister – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 65, 351
Migration Regulations 1994, cls 802.214, 802.221

CASES
Hussain v MIBP [2017] FCCA 3247
Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 463
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 October 2024 to refuse to grant the visa applicant a Child (Residence) (Class BT) Subclass 802 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant in this review is Ms Janyaporn Jetketkit who is a 22-year-old Thai national. Ms Jetketkit is referred to as the applicant in these reasons for decision.
The applicant was granted a Visitor (Subclass 600) visa on 2 November 2022 and arrived in Australia on 18 November 2022. That visa allowed the applicant a maximum three month stay in Australia.
On 5 January 2023 the applicant applied for a Child (Residence) (Class BT) (Subclass 802) visa.
On 11 January 2023 the applicant was granted a Bridging A (Subclass 010) visa associated with her Child visa application. The applicant’s Bridging A visa has condition 8101 (must not work in Australia) attached from Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations).
At the time of this decision, the applicant continues to hold the Bridging A visa granted to her on 11 January 2023.
At the time of application for the Child (Residence) (Class BT) visa Class BT 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 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 802.214.
The primary decision
The applicant provided the Tribunal with a copy of the primary decision.
The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl 802.214 of Schedule 2 to the Regulations, which provides:
(1) If the applicant has turned…

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 Jetketkit (Migration)

Details

AGLC: Jetketkit (Migration) [2024] ARTA 139
Case: [2024] ARTA 139
Decision Date: 12 December 2024

CaseChat Overview and Summary

This case involves an application for review of a decision by a delegate of the Minister for Home Affairs to refuse a Child (Residence) (Class BT) Subclass 802 visa to Ms Janyaporn Jetketkit, a 22-year-old Thai national. Ms Jetketkit had applied for the visa after initially entering Australia on a Visitor (Subclass 600) visa and subsequently being granted a Bridging A (Subclass 010) visa associated with her Child visa application. The delegate refused the visa on the basis that Ms Jetketkit did not meet the requirements of cl 802.214 of Schedule 2 to the Regulations, specifically the requirement to have been undertaking a full-time course of study since turning 18 or within a reasonable time after completing secondary school. The key legal issue before the court was whether Ms Jetketkit met the criteria for a Subclass 802 visa. The court examined whether Ms Jetketkit met the requirements in cl 802.214 of the Regulations, which includes being unmarried and not engaged in full-time work, and having been undertaking full-time study since turning 18 or within six months or a reasonable time after completing secondary school. The court found that Ms Jetketkit met the requirements relating to her relationship status and employment history but did not meet the study requirement. The court considered the evidence presented by Ms Jetketkit and her step-father, including attendance records, academic records, and enrolment information. While Ms Jetketkit had enrolled in courses, there were significant gaps in her study, which the court found did not satisfy the reasonable time requirement. The court concluded that the decision to refuse the visa should be affirmed as Ms Jetketkit did not meet the full-time study requirement.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 October 2024 to refuse to grant the visa applicant a Child (Residence) (Class BT) Subclass 802 visa under s 65 of the Migration Act 1958 (Cth) (the Act).Background The applicant in this review is Ms Janyaporn Jetketkit who is a 22-year-old Thai national. Ms Jetketkit is referred to as the applicant in these reasons for decision. The applicant was granted a Visitor (Subclass 600) visa on 2 November 2022 and arrived in Australia on 18 November 2022. That visa allowed the applicant a maximum three month stay in Australia. On 5 January 2023 the applicant applied for a Child (Residence) (Class BT) (Subclass 802) visa. On 11 January 2023 the applicant was granted a Bridging A (Subclass 010) visa associated with her Child visa application. The applicant’s Bridging A visa has condition 8101 (must not work in Australia) attached from Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). At the time of this decision, the applicant continues to hold the Bridging A visa granted to her on 11 January 2023. At the time of application for the Child (Residence) (Class BT) visa Class BT 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 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 802.214. The primary decision The applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl 802.214 of Schedule 2 to the Regulations, which provides:(1) If the applicant has turned 18: (a) the applicant:(i) is not engaged to be married; and(ii) does not have a spouse or de facto partner; and(iii) has never had a spouse or de facto partner; and(b) the applicant is not engaged in full-time work; and(c) subject to subclause (2), the applicant has, 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.(2)Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. Subparagraph (b)(ii) of the definition of dependent child provides:… is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions. The delegate found the applicant did not meet the requirement of cl 802.214 because:·The applicant did not commence her post-secondary school studies until 14-months after she completed secondary school;·The applicant had a further gap in her studies from November 2022 to March 2023;·The applicant was not enrolled in full-time study on 5 January 2023 when she applied for the visa; and·The applicant had a further gap in study between January 2024 and the date of the primary decision being 9 October 2024.Tribunal hearing

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 the present case is whether the applicant meets the criteria for applicants who are over the age of 18 years to be granted a Child (Residence) Subclass 802 visa, as those requirements are set out in cl 802.214 of Schedule 2 to the Regulations.Criteria for applicants over 18 If, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl 802.214. These requirements must continue to be met at the time of decision: cl 802.221(2)(b).Relationship status and history At the time of application, the applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl 802.214(1)(a). This must continue to be the case at the time of this decision: cl 802.221(2)(b). The applicant’s evidence to the Tribunal is that she is not engaged at the time of this decision, is not and has not been married and is not and has not been in a de facto relationship. In the absence of any evidence to the contrary, the Tribunal accepts the applicant’s evidence. Accordingly, the Tribunal finds that cl 802.214(1)(a) of Schedule 2 to the Regulations is met at the time of application for the visa and continues to be met at the time of this decision. Not engaged in full-time work At the time of application, the applicant must not be engaged in full-time work: cl 802.214(1)(b). This must continue to be the case at the time of this decision: cl 802.221(2)(b). The applicant’s evidence to the Tribunal is that she has not ever worked in full-time paid employment. Mrs Tonglad and Mr Birch gave oral evidence consistent with the applicant’s evidence. In the absence of any evidence to the contrary, the Tribunal accepts the applicant’s evidence. The Tribunal also accepts the consistent oral evidence of the applicant, Mr Birch and Mrs Tonglad, supported by copies of receipts for funds transfers and copies of account statements for Mr Birch’s bank account, that Mr Birch has been the sole source of financial support for the applicant since the applicant completed secondary school. The Tribunal also accepts the consistent oral evidence of the applicant, Mr Birch and Mrs Tonglad that the applicant has lived with Mr Birch and Mrs Tonglad since arriving in Australia. Accordingly, the Tribunal finds that cl 802.214(1)(b) of Schedule 2 to the Regulations was met at the time of application for the visa and continues to be met at the time of this decision.Full-time study (or incapacitated for work) At the time of application, the 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 802.214(1)(c).

Decision

Reasons for decision

The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to 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 802.214. The primary decision The applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl 802.214 of Schedule 2 to the Regulations, which provides:(1) If the applicant has turned 18: (a) the applicant:(i) is not engaged to be married; and(ii) does not have a spouse or de facto partner; and(iii) has never had a spouse or de facto partner; and(b) the applicant is not engaged in full-time work; and(c) subject to subclause (2), the applicant has, 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.(2)Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. Subparagraph (b)(ii) of the definition of dependent child provides:… is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions. The delegate found the applicant did not meet the requirement of cl 802.214 because:·The applicant did not commence her post-secondary school studies until 14-months after she completed secondary school;·The applicant had a further gap in her studies from November 2022 to March 2023;·The applicant was not enrolled in full-time study on 5 January 2023 when she applied for the visa; and·The applicant had a further gap in study between January 2024 and the date of the primary decision being 9 October 2024.Tribunal hearing The applicant appeared before the Tribunal on 11 December 2024 to give evidence and present arguments by video from Western Australia. The Tribunal also received oral evidence by video from:·Mrs Ponsri Tonglad, the applicant’s mother;·Mr Mark Birch, the applicant’s step-father; and·Mrs Beverley Alexander, the sister of the applicant’s step-father. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.Additional information before the Tribunal The Tribunal received several submissions from Mr Birch on behalf of the applicant, including the following documents:·A five-page submission from Mr Birch;·The applicant’s class attendance records for 2023 and 2024;·The applicant’s Certificate I in English as an Additional Language;·The applicant’s academic record for 2023;·The applicant’s enrolment information for 2023 and 2024;·The applicant’s timetable for her Certificate II in English as an Additional Language studies; ·The registered marriage certificate of Mrs Tonglad and Mr Birch;·Hospital discharge reports for Mrs Tonglad from September 2020, February 2023 and February 2024.

Ratio Decidendi

Legal Principle Established

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