Jin (Migration) - [2025] ARTA 138

JIN (MIGRATION) [2025] ARTA 138 (3 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Linxiao Jin
Visa Applicant:  Mr Yuan Yao
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2106448

Tribunal:Moira Brophy
Place:Sydney
Date: 3 February 2025
Decision:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.
Statement made on 03 February 2025 at 9:29am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – applicant aged over 18 – requirement not to be in paid employment and studying full-time at times of application and decision – condition met at time of application, but applicant in paid employment since degree course completed and condition not met at time of decision – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213(1)(b), (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

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 25 March 2021 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 101 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 11 February 2019. The delegate refused to grant the visa on the basis that while the delegate was satisfied the applicant met clause 101.213 at the time of application, they had not provided evidence that they continued to study full time until the time the delegate made their decision, and so were not able to meet clause 101.221.
The review applicant appeared before the Tribunal on 24 January 2025 by way of a video link to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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 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).
According to documents provided to the department and the Tribunal the applicant was born on 10 April 1998. At the time the application was lodged on11 February 2019 the applicant was aged over 18.
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…

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 Jin (Migration)

Details

AGLC: Jin (Migration) [2025] ARTA 138
Case: [2025] ARTA 138
Decision Date: 3 February 2025

CaseChat Overview and Summary

Jin (Migration) was a case heard by the Administrative Appeals Tribunal of Australia. The applicant, aged over 18, had applied for a Child (Migrant) (Class AH) visa under Subclass 101, commonly known as a child migrant visa. The primary dispute centred on whether the applicant fulfilled the condition of not being in paid employment and studying full-time at both the time of application and the time of the decision.

The key legal issues the court had to decide were whether the applicant had met the requirement of not being in paid employment and studying full-time at the time of application and whether this condition was still fulfilled at the time of the decision. Under cl 101.213(1)(c), the applicant needed to be undertaking a full-time course of study at the time of application and continue to meet this condition at the time of the decision. The applicant had been studying full-time at the time of application but had since completed their degree and was in paid employment by the time of the decision.

The Tribunal concluded that the decision under review should be affirmed. The Tribunal found that the applicant met the full-time study condition at the time of application, as evidenced by their enrolment and attendance at a recognised educational institution. However, by the time of the decision, the applicant had completed their studies and was in full-time employment, which meant the condition was no longer met. The Tribunal considered the evidence provided by the applicant and the statements from their employer, confirming that the applicant had indeed been in paid employment since completing their degree.

In summary, the Tribunal upheld the decision to affirm that the visa applicant did not meet the full-time study requirement at the time of the decision, despite having met it at the time of application. This conclusion was based on the applicant's transition from full-time study to full-time employment after completing their degree.

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 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 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). According to documents provided to the department and the Tribunal the applicant was born on 10 April 1998. At the time the application was lodged on11 February 2019 the applicant was aged over 18.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). The Tribunal is satisfied the visa applicant is not and has never been married. 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. Accordingly, cl 101.213(1)(a) is met. It 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). This must continue to be the case at the time of this decision: cl 101.221(2)(b). 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. Documents provided to the tribunal by the applicant included a statement from Tianjin Zhonglei Construction & Engineering Pty Ltd dated 23 December 2024 to the effect that the applicant was an employee of the company and that he had been recruited by their company in March 2021. The Tribunal discussed this at the time of hearing and the review applicant confirmed at the time of hearing that the applicant was currently in paid employment. Accordingly, cl 101.213(1)(b) is met at time of application but it is not met 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 six 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).

Ratio Decidendi

Legal Principle Established

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